August 14, 2015, Number 30

Download the August 14, 2015 Number 30 (PDF) update.

Fifth Circuit Court of Appeals: Voter ID Law has a “Discriminatory Effect” Last week, a three-judge panel of the Fifth Circuit Court of Appeals unanimously held that the Texas voter identification law has a “discriminatory effect” and therefore violates the federal Voting Rights Act. The opinion in Veasey v. Abbott (PDF) is the latest in the long-running legal battle over Texas’ voter identification legislation, which was signed into law in 2011.

The Fifth Circuit’s decision comes after the state appealed a federal district court judge’s 2014 ruling that the voter identification law was enacted with a racially discriminatory purpose, has a racially discriminatory effect, is an unconstitutional “poll tax,” and unconstitutionally burdens the right to vote.

The Fifth Circuit Court of Appeals partially agreed, holding that the law has a discriminatory impact on minority voters because minority voters are more likely to lack the identification necessary to vote. As a result, the court held that the voter identification law violates Section 2 of the Voting Rights Act, which prohibits a state from imposing a “voting qualification or prerequisite to voting or standard, practice, or procedure... which results in a denial or abridgement of the right of any citizen... to vote on account of race or color.”

Although the appeals court upheld the district court’s conclusion that the voter identification law has a discriminatory effect, the court overturned the district court’s determinations that the law was enacted with a racially discriminatory purpose and constitutes an impermissible poll tax. The court of appeals remanded the case back to the district court to evaluate the “discriminatory purpose” claim in light of different legal standards laid out in the opinion, as well as to determine the proper remedy associated with the “discriminatory effect” determination under Section 2 of the Voting Rights Act.

Following the decision, Governor Abbott issued a press release promising that “Texas will continue to fight for its voter identification requirement to ensure the integrity of elections in the Lone Star State.” Given this statement, it is likely that the state will fight the ruling of the Fifth Circuit, although the details of a possible appeal are unclear at this time. League staff will monitor and report on the case as it develops. Texas cities preparing for November elections should consult with their city attorney about the decision immediately.

Resolutions for the 2015 TML Annual Conference

The TML Constitution states that resolutions for consideration at the Annual Conference must be submitted to the TML headquarters 45 calendar days prior to the first day of the Annual Conference. For 2015, this provision means that resolutions from any member city, TML region, or TML affiliate must arrive at the TML headquarters no later than 5 p.m. on August 10, 2015.

The TML Board of Directors has adopted several procedures governing the resolutions process. Please review the following items carefully and thoroughly.

1. No resolution may be considered by the TML Resolutions Committee unless it has prior approval of: (a) the governing body of a TML member city; (b) the governing body or membership of a TML affiliate, or (c) the membership of a TML region at a regional meeting.
2. TML member cities, regions, and affiliates that wish to submit a resolution must complete a resolution cover sheet. The cover sheet is available. Please feel free to make as many copies of this cover sheet as you desire. The cover sheet must be attached to the resolution throughout each step of the resolutions process.
3. It is recommended that any resolution state one of four categories to better direct League staff. Those categories are:
   • Seek Introduction and Passage means that the League will attempt to find a sponsor, will provide testimony, and will otherwise actively pursue passage. Bills in this category are known as “TML bills.”
   • Support means the League will attempt to obtain passage of the initiative if it is introduced by a city or some other entity.
   • Oppose.
   • Take No Position.
4. Please see the 2015-2016 TML Legislative Policy Development Process (PDF) for more information.
5. Resolutions submitted will be thoroughly discussed at the TML Annual Conference. The Resolutions committee is appointed by the TML President and is made up of city officials from TML member cities across the state.
6. The city, region, or affiliate that submits a resolution is encouraged to send a representative to the Resolutions Committee meeting to explain the resolution. The Resolutions Committee will meet at 2 p.m. on Tuesday, September 22, 2015, at the Henry B. Gonzalez Center in San Antonio.

If the procedures described above are not followed for any given resolution, that resolution is likely to be referred to some other TML committee for further study. In that case, the resolution would not be adopted during the 2015 conference.

Under the TML Constitution, resolutions received after the deadline of August 10, 2015, must not only have the attached cover sheet, but also must “state the reason precluding timely submission.” These late resolutions may be considered by the TML Resolutions Committee at the Annual Conference only if two-thirds of the Committee members present and voting agree to suspend the submission rule and consider the resolution.

Resolutions may be submitted by mail, fax, or email to Scott Houston, Deputy Executive Director and General Counsel, at:

1821 Rutherford Lane
Suite 400
Austin, Texas 78754
Fax: 512-231-7490
Email Scott Houston

If you have any questions or would like any assistance, please call 512-231-7400 at any time.

Prop 7 Would Provide Additional Transportation Funding

Proposition 7 is a proposed constitutional amendment authorized by SJ.R.5 (Nichols, R - Jacksonville). It would authorize a new source of transportation funding for the State of Texas by dedicating a portion of the general sales and use tax and the motor vehicle sales tax to the state highway fund. (A more detailed summary of the proposition is available on our Transportation page.)

While city officials may believe that this, or any, constitutional amendment is important, state law prohibits a city from spending public funds to support or oppose any election measure, including a statewide constitutional amendment election. (For detailed information on the prohibition, visit the Texas Ethics Commission’s website.)

Please note that nothing prohibits an individual, on his or her own time and not using city resources, from advocating for a measure. To that end, Move Texas Forward is an organization of businesses and others that is committed to educating and informing Texas motorists, taxpayers, employers, and voters about the importance of investing in transportation infrastructure. The group has a website that allows individuals to pledge their support for Prop 7.

Utility Relocation: Court Strikes a Blow Against Cities

Earlier this week, the Dallas Court of Appeals struck a blow to the City of Richardson in Oncor Electric Delivery Company v. City of Richardson. The court overturned a trial court ruling that had affirmed municipal authority to require private utilities to relocate their facilities for public projects.

The dispute began in 2010 when, pursuant to franchise terms, the city requested that Oncor relocate its utility poles in 32 alleys for reconstruction and widening. Even though the franchise required the relocation of Oncor’s facilities - at Oncor’s cost - when required for city construction projects, Oncor refused to do so.

In 2012, the city filed suit in state district court in Dallas to enforce the franchise provisions and - alternatively - to enforce the common law rule on relocation. The common law rule has come from court opinions over the years that have concluded that the public’s right to use streets is paramount to a private company’s.

In 2014, the trial court ordered summary judgment in favor of the city on all issues. This week, the appeals court reversed and rendered judgment in favor of Oncor. Why the reversal? It appears that procedural issues kept the trial court from considering certain documents offered by Oncor after the hearing, but the appellate court stated it could review the documents under a doctrine called “judicial notice.”

During the period in which the dispute occurred, Oncor had filed a rate case with the Public Utility Commission (PUC) seeking changes in its rates, operations, and services as set forth in its “tariff.” The PUC defines “tariff” as “the schedule of a utility…containing all the rates and charges stated separately by type of service, the rules and regulations of the utility, and any contracts that affect rates, charges, terms or conditions of service.”

In 2011, Oncor and the city reached a settlement on the rate changes, and the city enacted an ordinance accepting a proposed settlement with new tariff rates. There was a dispute at the trial court about whether the tariff documents were properly in evidence. The appeals court concluded that they were, and that the city had agreed to the tariff in the 2011 settlement ordinance. Those issues were the deciding factors in the case because the tariff had a standard term providing that “the entity requesting such removal or relocation, shall pay to Company the total cost of removing or relocating such Delivery System facilities.”

The case presents a bad result, not only for the City of Richardson but for all cities that are served by investor owned electric utilities. That’s because the case seems to do away with the common law rule and replace it with a new interpretation of the language in a utility’s tariff. (All investor owned electric utility tariffs have the offending language.) Of course, a state statute still mandates that an electric utility to pay for relocations for the widening or straightening of a street. But, according to the court, an alley isn’t a street.

The ultimate result is that, for projects that don’t involve the widening or straightening of a street, cities may have to pay for electric utilities to relocate their facilities.

The League, along with the Steering Committee of Cities Served by Oncor coalition, filed an amicus brief in support of the City of Richardson. League staff will continue to monitor the case for additional developments.

Payday Lending Clearinghouse Updates

The League’s “Payday Lending Clearinghouse” webpage, available at Payday Updates page, includes information related to the regulation of payday and auto title lenders. It is updated from time-to-time to reflect recent developments. Interested city officials should note that, this week, Corpus Christi became the 26th Texas city to adopt business regulations governing payday and auto title lenders. During the weeks preceding the city’s adoption of the ordinance, the Consumer Service Alliance of Texas (CSAT), the statewide trade association for credit access businesses in Texas, made numerous comments on the city’s actions. Visit the web page for additional details.

Disclaimer

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.