TCAA NEWS
(Volume 3, Issue 11 – December 2008)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

2009 Riley Fletcher Basic Municipal Law Seminar to be held in Austin: The Tenth Annual Riley Fletcher Basic Municipal Law Seminar will be held in Austin on February 13, 2009. Topics will include: (1) types of city government; (2) open government; (3) economic development; (4) ethics for city attorneys; (5) Tort Claims Act; (6) personnel; (7) municipal court; (8) purchasing; and (9) land use. The seminar is great for new city attorneys or those wanting a refresher in the basics! Special thanks to our sponsor:

Akers & Boulware-Wells, L.L.P.

TCAA is “Going Green”! Special note on this and all upcoming seminar materials: TCAA will no longer provide binders for speaker papers or printed materials of any kind. Instead, TCAA will put all speaker papers on the TCAA Web site under “speaker papers” for attendees to download in advance, if they so desire. No written materials (except for late speaker materials) will be provided at the seminar location.

To register for the seminar or for more information, please visit www.texascityattorneys.org.

TCAA South Padre Conference to be held on June 10-12, 2009: The first freeze of winter has arrived in many parts of Texas, but TCAA members should already be looking forward to fun in the sun in 2009! Planning has already commenced for next year’s South Padre Conference, which will be held on June 10-12, 2009, and TCAA is always looking for speakers. If you would like to volunteer your time and talents, please submit your ideas by e-mail to Scott Houston at shouston@tml.org by December 31, 2008. Hotel and registration information for the conference will be available early next year.

UPDATE - TCAA and IMLA Partner to Provide Innovative Small Cities Membership Benefit: The Texas City Attorneys Association (TCAA) is pleased to announce a new partnership with the International Municipal Lawyers Association (IMLA). TCAA has paid for those cities under 2,500 in population to be limited members of IMLA. Specifically, TCAA pays $50 annually on the city attorney’s behalf, which entitles the city attorney to the limited IMLA membership. The limited IMLA membership includes:

  • A subscription to IMLA’s outstanding Municipal Lawyer magazine.
  • A subscription to IML@ NEWS (IMLA’s informative e-newsletter).
  • Discounted registration for all IMLA conferences and seminars.

No action on your part is required, and IMLA's communications will be sent directly to the city attorney. Each city attorney who represents a city under 2,500 population should receive a mailer describing the program.

Tell Us Your Most Outrageous Land Use Requests! Has a city councilmember or citizen ever inquired about building a wall around your city or perhaps restricting subdivision residency to “lieutenant colonels and above?” They sound outrageous, but these stories are TRUE! The City of El Paso city attorney’s office is collecting the most outrageous land use requests made to city attorneys for its “Real Life Land Use Requests” session at an upcoming land use seminar. Please share your worst (best?) stories by sending them to Marie Taylor at taylorma@elpasotexas.gov. The presenters promise to withhold the names of the innocent. With your help, this presentation will be fun and entertaining for all participants. Thank you!

Municipal Attorney Job Openings: For the most recent Texas Municipal League classifieds postings, please click here.

TML/TCAA Legal Defense Program
Amicus Brief, Attorney General Opinion, and State Agency Comments Filed

Open Meetings: RQ-0763-GA; Validity of a city charter provision that permits a majority of councilmembers to call a public meeting. This request asks whether “a majority of the councilmembers can call, without deliberating at a publicly noticed meeting, for a special meeting of the city council without violating the Open Meetings Act?” TML and TCAA argued that the key element of the definition of a meeting is that the information concerns “public business or public policy.” The attorney general’s office should conclude that a communication between councilmembers concerning only whether to have a meeting does not concern substantive public business or public policy. In other words, simply asking whether a meeting should be held does not constitute a “meeting” under the Act’s definitions. So long as councilmembers are not conspiring to circumvent the Act, the communication is permitted.

Recent Texas Cases of Interest to Cities
Note: Included cases are from the period beginning on the 10th of the previous month through the 10th of the current month.

Annexation: Town of Fairview, Texas v. City of McKinney, Texas, No. 05-06-01691-CV (Tex. App. – Dallas, Dec. 4, 2008). In this case, McKinney adopted an ordinance in 1958 that accidentally included a 600-foot-wide strip of land that was already in Fairview’s city limits. In 1959, McKinney adopted a disannexation ordinance to release that area back to Fairview.

Later, annexations by McKinney regarding other tracts were called into question based on the 1950s annexations. Fairview argued that McKinney’s ordinance is void ab initio because its boundary description included the 600-foot strip already contained within Fairview’s city limits. McKinney countered that it discovered its mistake and later disannexed the 600-foot strip. The court concluded that the fact that McKinney was prohibited from annexing into Fairview’s city limits does not make the entire annexation ordinance void.

After citing previous decisions that appeared to conclude that an annexation ordinance cannot be “partially upheld,” the court further analyzed the decision and concluded that they are not on point. The principal source for much of the “wholly void” language used in other cases is Alexander Oil v. City of Seguin. However, Alexander Oil did not present, and that court did not directly address, whether an annexation that partially exceeds the city's annexation authority is void in part or in whole. There, the plaintiff attacked the City of Seguin's annexation ordinance based on alleged procedural irregularities in the annexation process. In deciding whether these claims could be asserted by a private party, it appears the opinion in Alexander Oil used the phrase “wholly void” to distinguish between complaints that would render an annexation void (and thus subject to collateral attack by private parties), and complaints that would render an annexation voidable (and thus assertable only through quo warranto).

The court disagreed with Fairview's argument that Alexander Oil is authority for its position that, because the ordinance was void in part, it was “wholly void” and thus not effective to annex anything. A more instructive opinion was that by the Texas Supreme Court in City of West Lake Hills v. City of Austin, wherein a part of Westlake Hills’ boundaries could not be determined when it attempted to incorporate. For that and other reasons, the court upheld the incorporation of the city, but only as to the “main” part. It concluded that, under the facts presented, the holding that incorporation was void only in part did not violate the general principle that an incorporation or annexation ordinance cannot be reformed by judicial action.

Based on the Texas Supreme Court’s holding in West Lake Hills, the court concluded that if a portion of a city’s boundary is invalid, the remainder of the boundary may be upheld if the facts warrant it and if the court can do so without usurping the legislative authority of a home rule city to draw its boundaries.

Sovereign Immunity – Contract: City of Alton v. Sharyland Water Supply Corp., No. 13-06-00038-CV (Tex. App. – Corpus Christi, Nov. 25, 2008). The City of Alton (Alton) and the Sharyland Water Supply Corporation (Sharyland) entered into a water service agreement and a water supply agreement. In 1994, Alton began development on a sewer system. That development resulted in many of Alton’s residential service connections for the sewer main crossing over Sharyland’s water main, threatening to leak sewage into the water lines. Sharyland sued Alton for breach of contract and sought to enjoin Alton from operating the sewer lines in a wrongful manner, claiming that the residential sewer service connections were constructed in violation of state regulations, specifically section 317.13 of the Texas Commission on Environmental Quality Design Criteria for Sewerage Systems relating to the proximity of the sewer system to water lines. It also brought suit for negligence and breach of contract against certain corporate entities that constructed the sewer system.

At trial, the jury found that Alton breached the water supply agreement with Sharyland by failing to maintain the proper separation distance between the sewer and water lines, and breached the water service agreement by failing to comply with Sharyland’s regulations. The trial court also granted Sharyland’s motion for partial summary judgment on its declaratory judgment claim that section 317.13 applied to all sewer connections in proximity with the water lines. However, the trial court denied Sharyland’s claims for injunctive relief and specific performance.

On appeal, Alton argued that because it did not waive its governmental immunity, the court has no jurisdiction over Sharyland’s breach of contract claims. In response, Sharyland contended that Alton’s immunity from suit was waived by section 271.152 of the Local Government Code, which provides that a local government that enters into a contract “waives sovereign immunity to suit for the purpose of adjudicating a claim for breach of the contract[.]” The court found that the agreements at issue between Alton and Sharyland involved “services” and therefore fell within the scope of section 271.152, waiving Alton’s immunity.

Alton also claimed that Sharyland produced no evidence of damages, and that if the court of appeals found that Sharyland has compensable damages, those are not recoverable because damages are limited under section 217.153(a) of the Local Government Code. Damages could be recovered under this section if there was either a balance due and owed by Alton under the agreements at issue, or if there was any amount due from change orders, additional work, or interest. As neither form of damages applied to this case, the court held that Sharyland had no avenue for recovery.

Finally, Alton contended that Sharyland cannot recover attorneys’ fees given the language in section 271.159 of the Local Government Code. Without reaching that provision in the Local Government Code, the court held that Sharyland cannot recover attorneys’ fees against Alton on the breach of contract claim. Under chapter 38 of the Civil Practices and Remedies Code, attorneys’ fees can be awarded for a suit based on a contract if a party prevails on a cause of action for which attorneys’ fees are recoverable and recovers damages. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8). Because Sharyland recovered no damages, and because section 38.001 applies only when an individual sues a corporation (not a city), the court held that the trial court erred in awarding attorneys’ fees. As for the declaratory judgment claim, the court determined that because Sharyland did not segregate the fees in presenting testimony regarding attorneys’ fees at the trial level, the issue should be remanded back for a determination of the amount of the award.

Sharyland contended on its sole issue that the trial court erred in failing to grant equitable relief in lieu of the monetary damages awarded by the jury against Alton. In holding that the trial court did not abuse its discretion, the court of appeals noted that Sharyland sought to “control state action” by enforcing performance under the contract with Alton. The court held that Sharyland could not pursue an equitable claim regarding an unauthorized act without legislative permission, which was not given in this instance. Therefore, governmental immunity precluded Sharyland’s claim. Further, the court held that Sharyland had an adequate remedy in its breach of contract action.

Sovereign Immunity – Tort: Charlene Carter v. City of Galveston, No. 01-07-01010-CV (Tex. App. – Houston, Nov. 20, 2008). In this memorandum opinion, Carter appealed the dismissal of her case by the trial court based on the court’s granting of the city’s plea to the jurisdiction under sovereign immunity. Carter, who was injured when she tripped on an exposed pipe in a sidewalk within the City of Galveston, argued that the trial court erred in considering the evidence brought by the city when deciding the sovereign immunity plea. The city’s evidence included documents showing that, at the time of the incident, the sidewalk was in the Port of Galveston, an area that was leased and controlled by the Galveston Wharves, a separate governmental entity with sovereign immunity. The court held that it was not improper to consider this evidence in a plea to the jurisdiction. Additionally, the court held that although the city maintained ownership of the Galveston Wharves area, it did not have sufficient control over the premises to be liable, and thus the city’s governmental immunity was not waived.

Municipal Utility District: Northwest Austin Municipal Utility Dist. No. 1 v. City of Austin, No. 03-04-00240-CV (Tex. App. – Austin, Nov. 14, 2008). The court held that an agreement between the City of Austin and an in-city municipal utility district was an “allocation agreement” under the Texas Water Code, and thus the ad valorem taxes in the district could not exceed the city’s tax rate.

Civil Service: City of Houston v. Joseph Buttitta, No. 01-07-00323-CV (Tex. App. – Houston, Dec. 4, 2008) (op. on r’hg). The court held that a decision of the civil service commission can be reviewed by a court under the Declaratory Judgment Act if a city shows sufficient facts that the commission’s order was not legal or enforceable.

Takings: City of Midland v. Jud Walton, No. 11-08-00053-CV (Tex. App. – Eastland, Dec. 4, 2008) (mem. op.). A fact question of intent raised by the plaintiff is sufficient in a takings case to overcome a city’s pleas to the jurisdiction.

Eminent Domain: Curtis L. and Hazel B. Martin v. City of Rowlett, No. 05-07-00972-CV (Tex. App. – Dallas, Dec. 3, 2008) (mem. op.). A room change is insufficient to make notice in a condemnation proceeding inadequate, where the landowner originally received notice of the correct date, building, and time.

Sign Regulation: Lamar Co. v. City of Longview, No. 06-08-00060-CV (Tex. App. – Texarkana, Nov. 21, 2008). The court held that the city could require by ordinance the removal of a billboard that has been rebuilt or dismantled for purposes other than maintenance, where the city’s intent is to remove nonconforming signs.

Sovereign Immunity – Contract: City of Houston v. Southern Electrical Services, Inc., No. 01-07-00808-CV (Tex. App. – Houston, Nov. 20, 2008). The fact that a contract claim is likely to fail does not deprive the court of jurisdiction where the plaintiff has alleged sufficient facts to fall under a statutory waiver of sovereign immunity.

Sovereign Immunity – Contract: Emily Grace Scown v. City of Alpine, No. 08-07-00012-CV (Tex. App. – El Paso, Nov. 13, 2008). A land developer’s water services contract with a city is not enforceable where language in the contract allowed the city to terminate the contract at will if the landowner gave up its easement.

Takings: City of Dallas v. Chicory Court Simpson Stuart, L.P., No. 05-08-00262-CV (Tex. App. – Dallas, Nov. 24, 2008). Administrative procedures had not been exhausted in a takings case where the developer had never submitted its desired development plan in writing to the city.

Property: Wind Mountain Ranch, LLC v. City of Temple, No. 07-07-0305-CV (Tex. App. – Amarillo, Nov. 25, 3008) (mem. op.). The city prevailed in a property action where the appellant Wind Mountain did not properly assign error.

Sovereign Immunity – Tort: Ivo Nabelek v. City of Houston, No. 01-06-01097-CV (Tex. App. – Houston, Nov. 26, 2008) (mem. op.). A plaintiff must ensure that service of process is properly accomplished to the proper agent of the city for a statute of limitations claim to be estopped.

You can view attorney general opinions at www.oag.state.tx.us. On the same site, you can also sign up to receive e-mail updates of opinion requests and newly released opinions.

As a supplement to TCAA News, please check the TML Legislative Update Newsletter and TML’s Connect News Service .
Please contact Scott Houston, TCAA General Counsel, with your news, questions, and/or comments by e-mail at legalgovt@tml.org or by phone at 512-231-7400.
TCAA members may use the information herein for any purpose. No other person may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas City Attorneys Association.
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