TCAA NEWS
(Volume 4, Issue 11 – December 2009)
“Your Source for Information About the Texas City Attorneys Association”
News and Updates

LisTCAA Listserv Debuts: Many Texas city attorneys participate in the International Municipal Lawyers Association Municode listserv. Now’s your chance to glean and share information on a listserv that consists of only Texas attorneys! To join, please go to www.texascityattorneys.org, and click on the LisTCAA link on the left side of the page.

TCAA South Padre Conference to be held on June 9-11, 2010: 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 2010! Hotel and registration information for the conference will be available early next year.

2010 Riley Fletcher Basic Municipal Law Seminar to be held in Dallas: The Eleventh Annual Riley Fletcher Basic Municipal Law Seminar will be held at the Dallas city hall on February 26, 2010. 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.

Registration for the seminar will be available shortly after the New Year at www.texascityattorneys.org. (A separate, reminder e-mail will be sent at that time.)

Coming Soon - Online TCAA Seminars: TCAA has begun recording MCLE sessions and will soon be posting those to the TCAA Web site. For a small fee, TCAA members who missed a TCAA conference will be able to watch individual sessions, view the materials, and post questions to the new LisTCAA listserv. The seminars will provide full participatory MCLE credit.

IMLA Conferences: The International Municipal Lawyers Association conducts various seminars that complement the TCAA programs. This month’s featured seminar is IMLA’s 2010 mid-year seminar. The seminar will be held on April 18-20, 2010, at the Omni Shoreham Hotel in Washington, D.C. For more information or to register, go to www.imla.org and click on “events.”

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

Building Permits/Engineering: RQ-0832-GA; Municipal responsibility for enforcing laws that affect the practice of engineering. This request asks, among other things, whether the Texas Board of Professional Engineers (TBPE) has authority over cities and whether a city or its officials are immune from TBPE penalties. TML, TCAA, and the Building Officials Association of Texas (BOAT) argued that the TBPE is there to regulate individuals not cities. TML, TCAA, and BOAT also argued that even if the TBPE has regulatory authority over a city, a city would be immune from any administrative penalties. The request was received by the Attorney General on October 19, 2009.

Fair Housing Act: NAACP, et al. v. City of Kyle, Texas, No. 09-50352 (5th Cir. 2009). The City of Kyle homebuilder discrimination case continues at the Fifth Circuit. The NAACP and the national and local homebuilders associations claim that the City of Kyle’s zoning regulations lock minorities out of the home buying market. The city won at the trial court, and the homebuilders appealed. TML joined other cities and the brick association (one of the city’s requirements was a required percentage of masonry) in this amicus brief. The amici argue that the NAACP and other plaintiffs failed to prove standing. Also, the plaintiffs failed to adequately prove through their statistics that the zoning ordinances have a significant discriminatory effect on the availability of housing for minorities. The brief was filed on November 24, 2009.

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.

Governmental Immunity-Tort: City of Waco v. Debra Kirwan, No. 08-0121 (Tex. Nov. 20, 2009). Ms. Kirwan sued the City of Waco for wrongful death due to a premises defect when her son was killed after falling from a cliff within a city park. The city filed a plea to the jurisdiction stating that a landowner cannot be grossly negligent for failing to warn of the inherent dangers of nature under the recreational use statute.

The Texas Tort Claims Act makes a city liable for personal injury or death caused by a premises defect on city property. TEX. CIV. PRAC. & REM. CODE § 101.025. In premises liability cases, a city owes a duty to a claimant as a licensee unless the person pays for use of the premises. Id. § 101.022. The recreational use statute, which applies here, modifies the standard to that owed to a trespasser. Id. § 75.002. In State v. Shumake, the Supreme Court of Texas held that the standard under the recreational use statute is that the landowner must refrain from gross negligence, or from acting with malicious intent or in bad faith. 199 S.W.3d 279, 281 (Tex. 2006). Gross negligence is defined in Shumake as “an act or omission involving subjective awareness of an extreme degree of risk, indicating conscious indifference to the rights, safety, or welfare of others.” Id. at 287. “[An] owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions . . . .” Id. at 288.

The Supreme Court of Texas held that a landowner generally does not owe a duty to warn others against the dangers of natural conditions, such as a cliff. The court also noted that the city had posted signs warning of the danger of being on the cliff showing that the city did not show a “conscious indifference to the rights, safety, or welfare” of users of the park. The court held the city was immune from suit and dismissed the case.

Governmental Immunity/Zoning: Doye Baker et al., v. City of Robinson, No. 10-07-00398-CV (Tex. App.—Waco Dec 2, 2009). Baker sued the city for fraud over a real estate contract after the city sold Baker property that the city allegedly represented was zoned commercial when it was actually zoned single family residential. Baker wanted to use the property for multi- family housing, but he had to seek a zoning change from single family after believing at the time of purchase that the property was zoned commercial. The city argued in its motion for summary judgment that it had governmental immunity from suit because the sale of the property was a governmental function. The city further argued that it was not bound by any representation of the zoning of the property and that Baker could not prove the misrepresentation necessary to prove fraud.

Governmental entities receive some protection from suit under the Texas Tort Claims Act if the activity that is the object of the suit is a governmental function and not a proprietary function. TEX. CIV. PRAC. & REM. CODE § 101.0215. A city is not immune from suit if the activity is a proprietary function. Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006). A city is held to the same standard of liability as a private entity or individual. Gates v. City of Dallas, 704 S.W.2d 737 (Tex. 1986). Governmental functions are those that a city does for the benefit of the general public and many of those are listed in the Texas Tort Claims Act. TEX. CIV. PRAC. & REM. CODE § 101.0215. Proprietary functions are performed at the city’s discretion for the interest of the inhabitants of the city. Id. The city argued that its contract was a governmental function because: (1) state law requires a city to solicit bids for the purchase of city property; and (2) the dispute in this case involves zoning, which is a governmental function. See TEX. LOC. GOV’T CODE §§ 253.008; 272.001. The court held that the statutory bid requirement does not, standing alone, convert the sale of property into a governmental function. Temple v. City of Houston, 189 S.W.2d 816 (Tex. App.—Houston [1st Dist.] 2006). In this case, the city did not provide additional evidence that the function of the property or the sale of the property was a governmental function. The court also held that the function was not governmental because the heart of this dispute was a fraudulent misrepresentation about the zoning, and not a zoning matter. The activity in this case could be treated as a proprietary function and the city would be held to the same standard as a private entity in the Baker’s fraud claim.

Fraud requires proof of a false representation of material fact on which the person relied to enter a contract. TEX. BUS. & COM. CODE § 27.01. The city argues that it cannot be held to the representation of zoning under cases holding that a city cannot be held to a representation made by a city official. The court held that the situation in this case is different from the cases cited by the city because those cases involved a change or future assurance of zoning, and this case involved the current zoning when the property was sold. See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660 (Tex. 2004); City of Pharr v. Pena, 853 S.W.2d 56 (Tex. App.—Corpus Christi 1993).

The court held that the city failed to conclusively establish that the activity was a governmental function and that Baker should be allowed to rely on the city’s representation of the current zoning of the property.

Civil Service: City of San Antonio, et al., v. Raul G. Lopez, No. 04-09-00305-CV (Tex. App.—San Antonio Nov. 25, 2009) (mem. op.). The court held that the civil service commission’s tiebreaking rule that lead to Lopez’s ranking was appropriate under the collective bargaining agreement; therefore, the ranking was acceptable.

Governmental Immunity-Contract: McKinney & Moore, Inc. v. City of Longview, No. 14-08-00628-CV (Tex. App.—Houston [14th Dist.] Dec 8, 2009) (mem. op.). The court of appeals held that McKinney’s request for damages was based in contract under Chapter 271 of the Local Government Code, that the city’s immunity was waived, and that the requested damages were not prohibited consequential damages under Section 271.153. However, the court held that McKinney’s claim was barred under the contract because it had accepted payment from the city.

Tax: City of Alvin v. Sallie Zindle, No. 14-08-00458-CV (Tex. App.— Houston [14th Dist.] Dec 8, 2009) (mem. op.). The court held that in a tax foreclosure a royalty interest in the mineral estate can be severed from the foreclosed surface estate if the owner chooses to pay the taxes on that interest but not the surface estate. The court also held that the reversionary interest went with the foreclosed surface estate and that the city owned the reversionary interest.

Governmental Immunity-Tort: City of Fort Worth v. Audrey Robinson, No. 2-09-075-CV (Tex. App.—Fort Worth Nov. 12, 2009). The court of appeals granted the city’s plea to the jurisdiction on Ms. Robinson’s Tort Claims Act personal injury claim because the police officer’s actions were reasonable based on the circumstances.

Takings: City of Houston v. Bruce A. Norcini, No. 01-09-00426-CV (Tex. App.—Houston [1st Dist.] Nov. 19, 2009). The court of appeals held that Norcini’s takings claims were ripe, even though he never applied for a building permit, because the flood regulations would have prevented the issuance of a building permit.

Civil Service: City of Austin v. Clifton Alexander, et al., No. 03-08-00423-CV (Tex. App.—Austin Nov. 20, 2009) (mem. op.). The court of appeals held that even though some of the back pay claims predated Local Government Code Section 180.006, the lack of these claims did not take away the court’s jurisdiction over the rest of the parties’ claims.

Governmental Immunity-Tort: City of Irving v. Maria Seppy et al., No. 05-09-00017-CV (Tex. App.—Dallas Nov. 23, 2009). The court of appeals held that the Seppy’s claims did not involve a discretionary decision of the city under the Local Government Code Section 101.056 and therefore the denial of the plea to the jurisdiction was correct.

Workers Compensation: Victor McKoy v. City of Fort Worth, No. 2-09-151-CV (Tex. App.—Fort Worth Nov. 25, 2009) (mem. op.). The court of appeals held that the city filed its contest to McKoy’s workers compensation claim in a timely manner because it was filed within forty-five days of receiving medical documentation from McKoy.

Attorney General Opinions of Interest to Cities
Note: Included opinions are from the period beginning on the 10th of the previous month through the 10th of the current month.

Opinion No. GA-0747 (Municipal Civil Penalties Against Political Subdivisions): Concludes that, if the College Station Independent School District is liable for a civil penalty imposed upon it pursuant to Chapter 707 of the Texas Transportation Code and the City of College Station’s Code of Ordinances, its payment of the penalty would not contravene article III, Sections 51 and 52(a) of the Texas Constitution. However, if the district is not liable for a civil penalty, payment of that penalty by the district may violate article III, sections 51 and 52(a), unless the payment accomplishes a public purpose of the district, with a clear public benefit received in return, and there are adequate public controls in place to ensure that the public purpose is accomplished.

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.
Texas City Attorneys Association
1821 Rutherford Lane, Suite 400
Austin, Texas 78754
www.texascityattorneys.org