TCAA NEWS. Your Source for Information About the Texas City Attorneys Association. Winter Volume 7, Issue 6. Inside this issue:

Transcription

1 Your Source for Information About the Texas City Attorneys Association TCAA NEWS Winter 2012 Volume 7, Issue 6 Inside this issue: TCAA Fall Conference News and Updates Article: Opinion Issued in TOMA II Recent Texas Cases of Interest to Cities Attorney General Opinions of Interest to Cities TCAA Legal Defense Program Riley Fletcher Basic Municipal Law Seminar to Be Live Streamed! As another benefit to TCAA members, the 2013 Riley Fletcher Basic Municipal Law Seminar will be live streamed. The seminar has expanded this year and will take place on February 21-22, 2013, at the Texas Municipal Center in Austin, Texas. We hope you can join us in Austin but if you can t, you will also be able to view it online. To register, go to Thank You! A special thanks to TCAA for its continued support on Affiliates Day at the TML 100th Annual Conference and Exhibition. This year, TCAA Past Presidents were honored (pictured left). New TCAA Board Member and Officer Installed at Fall Meeting Marcus Norris passed the gavel to the new TCAA Board President Frank Garza, attorney at Davidson, Troilo, Ream & Garza, P.C. at the TCAA Fall Meeting. Alan Bojorquez, attorney at the Bojorquez Law Firm, was also elected to be a new director for the TCAA board at the meeting. Tyrone Cooper, city attorney for the City of Beaumont, was appointed to be the TML Board Representative from TCAA. FREE CLE! The 2012 TCAA Fall Conference Available Online TCAA Online Seminars is a FREE SERVICE that allows TCAA members who are city attorneys, assistant city attorneys, or attorneys who regularly practice municipal law to view a video of past seminars in a single-session format. Viewing of the session allows attorneys to receive participatory CLE credit with the State Bar. To view a vailab le s e mi nars, please go t o and click on the TCAA Online Seminars link. (Use the casesensitive password FreeCLE to gain access to the sessions.)

2 Legal Defense Program TCAA, in conjunction with the Texas Municipal League, files amicus briefs in support of cities on many different cases. To keep up to date with the status of those briefs, go to Municipal Attorney Job Openings For the most recent Texas Municipal League classifieds postings, please go to tml.associationcareernetwork.com/jobseeker/ Jobs.aspx?abbr=TML TCAA Summer Conference: Call for Speakers The Texas City Attorneys Association invites all attorneys interested in presenting at the 2013 TCAA Summer Conference in South Padre Island to submit your ideas to Scott Houston at by December 30, This year s conference will be held on June 5-7, Questions? Contact Scott Houston at shouston@tml.org or Summaries of cases affecting local governments from the Supreme Court of the United States and other courts are now available on the State and L o c a l L e g a l C e n t e r W e b s i t e a t Susan Rocha Memorial IMLA Scholarship Winners In Susan Rocha s memory, TCAA, in conjunction with the International Municipal Lawyers Association (IMLA), provided four $1,500 scholarships to the 2012 IMLA Annual Conference for inhouse city or assistant city attorneys only. The conference was in Austin on October 21-24, The winners were drawn from lots. There could only be one winner per city, and winners from previous years were not eligible. The winners were: Angela M. DeLuca, Assistant City Attorney, Bryan Stanley Smith, Assistant City Attorney, Abilene Regina A. Edwards, First Assistant City Attorney, Carrollton Valeria M. Acevedo, City Attorney, New Braunfels IMLA Presents 2012 President s Award to Clarence West The International Municipal Lawyers Association (IMLA) awarded the 2012 President s Award at its 77 th Annual Conference to Clarence West of Austin, Texas. IMLA established this award to honor an outstanding associate. The IMLA president has the honor of choosing this individual for this prestigious award. Clarence has represented municipal interests for over twenty years. As a former city attorney of the City of Houston, he is familiar with the operational and practical issue of a governmental entity. Since leaving the City of Houston, he has represented several municipalities throughout the nation. His practice has focused on legal issues concerning compensation and use of the public rights-of-ways. This includes telecommunication, cable television, gas and electric franchises, and rights-of-way management ordinances. He has an active practice before the Public Utility Commission of Texas. A number of his client cities formed a coalition for filing extensive comments on the implementation of House Bill 1777 (regarding telecommunications franchise fees and management of rights-of-way issues). He is also general counsel to a group of cities that have purchased power under the recently deregulated power market in Texas.

3 PAGE 3 TCAA NEWS VOLUME 7, ISSUE 6 Article Asgeirsson v. Abbott and the State of Texas: Fifth Circuit Releases Opinion William Mick McKamie McKamie Krueger, LLP On September 25, the Fifth Circuit issued its opinion in Asgeirsson v. Abbott and the State of Texas, (the case is often referred to as TOMA II or Alpine II ). The opinion rules against the public official plaintiffs First Amendment challenges, and holds, among other things, that TOMA is content-neutral and is not unconstitutionally overbroad. This is the second challenge brought by several city councilmembers and other local government officials who claim that the criminal closed meeting provision of the Texas Open Meetings Act (TOMA) unconstitutionally infringes on their right to freedom of speech. The plaintiffs have received much criticism in the press for pressing their case this hard (there was a first round of opinions that initially appeared promising for the city officials before the case was dismissed as moot and the opinions were vacated. Rangra v. Brown, 2006 WL (W.D. Tex. 2006), vacated by 576 F.3d 531 (5th Cir. 2009) (granted rehearing en banc), appeal dismissed as moot, 584 F.3d 206 (5th Cir. 2009) (en banc)). News reporting agencies have falsely characterized the current lawsuit as an attempt to eviscerate the entirety of the Act; however, only the criminal penalties h a v e b e e n challenged. The pleadings and briefs filed by the plaintiffs explicitly state that there is no attempt to void any other provision of the Act. I t i s i n t e r e s t i n g t o n o t e t h a t 1 9 states have open meetings acts with such penalties, and 12 have a short term of imprisonment as a penalty. Sunlight s Glare, 78 TENN. L. REV. at 324 n.95. United States District Judge Rob Junell conducted trial of TOMA II in Austin in November The testimony presented by plaintiffs on their self-censorship to avoid possible prosecution in the future by a prosecutor who might take a technical view of the requirements of the Act, was totally unchallenged. Self-censorship is often, but not always, considered the equivalent of a chilling effect. The Fifth Circuit upheld the trial court s ruling that the Act is a valid time, place and manner restriction, but it relied on an unusual body of law to do so. Despite the fact that political speech has been referred to by the U.S. Supreme Court as the purest form of speech protected by the First Amendment, the court analogized the Act to regulations that govern the operation of sexually oriented business. Instead of strict scrutiny review, the TOMA penalty provision was reviewed under intermediate scrutiny, in the manner prescribed in the 1986 United States Supreme Court decision Renton v. Playtime Theaters. In that case, the Court concluded that a regulation is not content-based merely because the applicability of the regulation depends on the content of the speech. A statute that appears content-based on its face may still be deemed content-neutral if it is justified without regard to the content of the speech. The Fifth Circuit applied this same review to the Act, holding that even though the Act applies only to speech that relates to public business it is aimed at prohibiting the secondary effects of closed meetings. According to the court, closed meetings: (1) prevent transparency; (2) encourage fraud and corruption; and (3) foster mistrust in government. Those justifications are unrelated to the messages or ideas that are likely to be expressed in closed meetings. So if a quorum of a governing body were to meet in secret and discuss anything unrelated to their powers as a governing body, no harm would occur. In Renton, adult movie theaters attracted crime and lowered property values, but not because the ideas or messages expressed in adult movies caused crime. Also of interest is the Fifth Circuit conclusion that the Act operates as a disclosure statute, similar to a portion of the Bipartisan Campaign Reform Act upheld by the U.S. Supreme Court in the Citizens United decision. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 130 S.Ct. 876(2010). But the penalty provision in TOMA becomes immediately effective upon any inadvertent or technical violation of the Act, with or without the opportunity for disclosure. The elements of the criminal offense are in place and subject a local government official to prosecution immediately upon the occurrence of the alleged violation. No amount of subsequent public disclosure or apology can cure that. In fact, such a subsequent disclosure would be tantamount to a confession. The chilling effect on speech ( speech being the free communication between elected officials and their constituents) could not be more clearly apparent. In fact, the portion of the Citizens United decision striking down some regulations in the same Bipartisan Campaign Reform Act are part of plaintiffs attack to TOMA s penalty provision. The law before us is an outright ban on speech, backed by criminal sanctions. Citizens United, 130 S.Ct. at 882.

4 PAGE 4 TCAA NEWS VOLUME 7, ISSUE 6 Asgeirsson v. Abbott, continued The decision will be appealed directly to the United States Supreme Court by Petition for Writ of Certiorari that will be filed in December The plaintiff local government officials are represented by Mick McKamie, Dick De- Guerin, and Craig Enoch. Counsel for the plaintiffs have volunteered hundreds of hours of professional time to present these important questions to the courts on behalf of cities and their officials. Currently, these attorneys are soliciting interested supporters to volunteer to file amicus briefs, and also for donations to cover the considerable expense associated with making application to the Supreme Court. Please contact Mick McKamie at mick@mckamiekrueger.com for more information. Recent Texas Cases of Interest to Cities Note: Included cases are from September 11 though December 10. Separation of Powers: Save Our Springs Alliance, Inc. v. City of Kyle, 2012 WL , CV (Tex. App. Austin Aug. 30, 2012). The City of Kyle applied for an amendment to its production permit with the Barton Springs-Edwards Aquifer Conservation District. The Alliance filed a protest and requested a hearing on the permit application. At the hearing, the district s board issued an order partially approving the city s permit application. After its motion for rehearing was denied, the city filed a suit for judicial review in district court. The Alliance filed a plea in intervention, in response to which the city filed a motion to strike. The trial court issued an order granting the city s motion for summary judgment and ordered the cause be remanded to the District. Subsequently, the city and district filed a Joint Motion to Approve Agreed Final Judgment, informing the court that the city and district had reached a settlement. The court signed the Agreed Final Judgment. The Alliance appealed on the grounds that the trial court erred by granting the city s motion to strike its plea in intervention. Rather than considering the Alliance s issues for appeal, the court vacated the trial court s judgment for lack of jurisdiction. The court concluded that the trial court was not empowered to render judgment granting an application through the Agreed Final Judgment. Instead, the court s only options were to reverse or remand the case. Therefore, the judgment violated the separation-of-powers doctrine of the Texas Constitution and is void. Public Information Act: Texas Assoc. of Appraisal Districts., Inc. v. Hart, 2012 WL , CV (Tex. App. Austin Aug. 31, 2012). This appeal looked at whether the Texas Association of Appraisal Districts, Inc. (TAAD) was a governmental body subject to disclosure of public information under the Texas Public Information Act (PIA). The court used the Kneeland test from the Fifth Circuit case Kneeland v. Natl. Collegiate Athletic Assoc. Using that three-part test, the court concluded that: (1) TAAD s relationship with all of its members imposes a specific and definite obligation to provide a measurable amount of service in exchange for money; (2) TAAD does not share a common objective with its members; and (3) TAAD s relationship with its appraisal district members does not require TAAD to perform services traditionally performed by governmental bodies. Thus, the court reversed the district court s judgment and rendered judgment that TAAD was not a governmental body under the PIA. Personnel: City of El Paso v. Marquez, No CV, 2012 WL (Tex. App. El Paso, Sept ). In this case, the city brought an accelerated interlocutory appeal from an order denying its plea to the jurisdiction and motion for summary judgment. After receiving a right-to-sue notice from the Equal Employment Opportunity Commission (EEOC) and the Civil Rights Division of the Texas Workforce Commission (TWC), Marquez, a former employee of the city fire department, initiated a private suit. Marquez alleged violations under Chapter 21 of the Texas Labor Code (Commission on Human Rights Act) and certain discrimination and retaliation claims under federal law, including Title VII of the Civil Rights Act and Section The city argued that Marquez failed to exhaust his administrative remedies by not complying with the city s grievance procedure, that Marquez failed to preserve his Chapter 21 claims by failing to timely file his administrative complaint, and that the trial court lacked subject matter jurisdiction over the Section 1981 claim. The court held that nothing in the Articles of Agreement between the City and fire department, Chapter 21, or Title VII required Marquez to exhaust the grievance procedure of his employer. As to the timeliness of his administrative complaint under Chapter 21, the court held that because Marquez alleged that the discrimination (hostile work environment) was an ongoing action, and because one of his allegations occurred during the 180- day statutory period, the complaint was timely filed. Finally, the court held that the trial court lacked jurisdiction over the Section 1981 claim because such a violation must be brought under Section DNA Testing: In re Minnfee, No CV, 2012 WL (Tex. App. Amarillo Oct. 18, 2012) (per curiam). In this case, Relator complains that the city s municipal court clerk refused to file a document wherein

5 PAGE 5 TCAA NEWS VOLUME 7, ISSUE 6 he requests DNA testing. The court concludes that it has no jurisdiction to issue a writ of mandamus against the municipal court clerk and Relator failed to show any authority permitting him to petition for DNA testing through a municipal or small claims court to attack his conviction. Personnel: City of Beaumont v. Stewart, No CV, 2012 WL (Tex. App. Beaumont Nov. 1, 2012). In this case, Stewart sued the city after he was involved in a two-car collision with a vehicle owned by the city and operated by a city employee. At the time of the accident, the city employee was on her lunch break and driving to her home. The trial court denied the city s plea to the jurisdiction. The city appealed, arguing that the trial court lacked subject matter over the suit because the employee was not in the paid service of the city or acting within the scope of her employment at the time of the accident. The city presented an affidavit from the city employee explaining, among other things, that she is not paid for the time she is at lunch and that she is free to go anywhere during lunch; however, if she takes the city vehicle, she must stay in her work area. The appellate court concluded that the city s evidence showed that the employee was not acting within the scope of her employment at the time of the accident. The case was dismissed for lack of jurisdiction. Personnel: Alcala-Garcia v. City of La Marque, 2012 WL , No CV (Tex.App. Houston [14 th Dist.] Nov. 1, 2012) (mem. op.). In June 2010, city employees Lydia Alcala-Garcia and Janet Solis were terminated by the city council for the stated reason of using city equipment to work on a political campaign and failing to follow the directives of the city manager. The employees filed a suit against the city pursuant to the Texas Whistleblower Act (Act) alleging that they were actually terminated because they discussed with the district attorney numerous instances of possible state law violations by the city manager. The court of appeals affirmed the trial court s order granting the city s motion for summary judgment, holding that the employees failed to first initiate action under the grievance or appeal procedures of the city, as required by Texas Government Code Section (a). Among other arguments, the employees claimed that they did not go through the grievance procedure spelled out in the city s employee handbook because the mayor informed them that it was not necessary, and because invoking the grievance procedure would have been futile since the appeal would be to the city council, who already voted to terminate the employees. Citing to cases establishing that jurisdiction cannot be conferred by estoppel, the court held that the employees could not claim to have satisfied the Act s jurisdictional requirements by availing themselves of the mayor s faulty advice. See Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex. 2001). Further, the court declined to recognize a futility exception to the Act since no such exception exists in the statute. Building Permit Ordinance: Lindig v. City of Johnson City, 2012 WL , CV (Tex. App. Austin Nov. 14, 2012). In this appeal, the Lindigs challenged the constitutionality of Johnson City s building permit fee ordinance on vagueness grounds. After inspection, Johnson City s building official concluded that the remodel the Lindigs were performing on a residence should be treated as new construction under the building permit fee ordinance because it involved substantial work. The Lindigs refused to pay the $1,000 building permit fee required for new construction, so the city sought and obtained a permanent injunction in district court. The Austin appeals court, however, concluded the building permit fee ordinance was unconstitutionally vague as constructed and applied, reversed the trial court, and rendered judgment in favor of the Lindigs. Employment: City of Fort Worth v. Jacobs, No CV (Tex. App Fort Worth Sept. 12, 2012). An employee sued the city for reinstatement based on alleged violations of the employee s due process and free speech rights. The city argued that reinstatement was not an appropriate remedy and therefore its plea to the jurisdiction should have been granted by the trial court. The court of appeals affirmed the trial court s denial of the city s plea because: (1) a city does not have immunity from suits based on alleged violations of the constitution; and (2) reinstatement is an equitable remedy. Governmental Immunity--Contract: Mustang Special Utility District v. Providence Village, No CV (Tex. App. Fort Worth Sept. 27, 2012) (mem. op.). Mustang, a water service corporation, obtained the certificate of necessity and convenience for the area of the future City of Providence Village in A water district was created in the same area in 2000 to finance water and wastewater infrastructure to the area where the city would be incorporated in The city sued Mustang to invalidate its contract with the water district, because it would make Mustang the provider of the city s water and sewer service without the city s or its residents consent or approval. The court of appeals held that the city s suit was barred by governmental immunity for Mustang because it compelled state action as prohibited by prior case law. See W.D. Haden v. Dodgen, 308 S.W.2d 838, 841 (Tex. 1958); Texas Logos v. Tex. Dep t of Transp., 241 S.W.3d 105, 120 (Tex.App. Austin 2007); see also Tex. S. Univ. v. State St. Bank & Trust Co., 212 S.W.3d 893, (Tex.App. Houston [1st Dist.] 2007, pet. denied).

6 PAGE 6 TCAA NEWS VOLUME 7, ISSUE 6 Governmental Immunity Torts: City of Watauga v. Gordon, No CV (Tex. App. Fort Worth November 21, 2012). Gordon sued the city after his hands were allegedly injured by a city police officer s use of handcuffs. He argued that this use of tangible personal property waived the city s governmental immunity. The city argued that the city s immunity was not waived because the use of the handcuffs was an intentional tort under Section of the Civil Practices and Remedies Code. The court of appeals held that the facts showed that the officer s use of the handcuffs was not intended to cause injury and was not excessive force, and thus not an intentional tort. It thus affirmed the trial court s denial of the city s plea to the jurisdiction. Attorney General Opinions of Interest to Cities Note: Included opinions are from the period beginning September 11 to December 10. Opinion No. GA-0966 (Golf Carts): Concluding that a person is operating a golf cart legally for purposes of section of the Texas Transportation Code if a person is operating a golf cart within the parameters of Subsection (a)(1), (a)(2), or (a)(3) of that section. Subsection (a)(3) of the Transportation Code allows operation of a golf cart on a public highway only if, among other requirements, the golf cart is operated not more than two miles from the location where the golf cart is usually parked and is operated only for the purpose of transportation to or from a golf course. Opinion No. GA-0968 (Elections): Concluding that determining the extent to which representations and statements made prior to an election creating an advanced transportation district may have become a part of the contract with the voters and construing the terms of such representations and statements involve questions of fact and contract construction not amenable to the opinion process. Twenty-five percent of the proceeds of an advanced transportation district sales and use tax must be used as the local share of a state or federal grant according to law for advanced transportation or mobility enhancement purposes in the territory of the district. Whether using such proceeds for a streetcar project would comport with this requirement would involve questions of fact that cannot be determined in an attorney general opinion. Opinion No. GA-0972 (Concealed Handguns): Concluding that an employer subject to Section of the Labor Code may not ban the transport and storage of handguns in locked private vehicles by employees with concealed handgun licenses in employee parking areas by posting the notice authorized by Section of the Penal Code. A federally approved facility security plan under either the Maritime Transportation Security Act or the Chemical Facility Anti-Terrorism Standards is not federal law that would preempt Section of the Labor Code. No statute of which we are aware provides a specific remedy for employees whose employers violate Section And the Legislature has not authorized this office or any other state agency to take corrective action. Despite the lack of a statutory remedy, an aggrieved employee may, depending on the circumstances, have the ability to sue an offending employer under the Uniform Declaratory Judgments Act. Opinion No. GA-0974 (Homestead Exemption): Concluding that, if a federal or state judge, the spouse of a federal or state judge, or a peace officer is otherwise entitled to claim a homestead exemption under Section of the Tax Code, he or she may comply with the requirements of Section 11.43(n) of the Tax Code by producing a personal identification certificate issued by the Department of Public Safety and showing his or her residence address. The Legislature has prohibited chief appraisers from accepting alternative forms of identification from homestead exemption applicants.

7 PAGE 7 TCAA NEWS VOLUME 7, ISSUE 6 Attorney General Opinions, continued Opinion No. GA-0976 (Sex Offenders): Concluding that a sex offender who resides within a municipality should register with the office of chief of police of the municipality, and a sex offender who resides outside the limits of a municipality should register with the county sheriff. A home-rule municipality may not require otherwise, unless the municipality is in a county with a centralized registration authority. A county with a population of less than 100,000 persons is not authorized to establish a centralized registration authority. Whether an offender may be prosecuted for failure to comply with sex registration requirements is a matter within a prosecutor's discretion. Opinion No. GA-0980 (Vested Rights): Concluding that the City of Austin s project ordinance would arguably be void to the extent it causes a project to expire sooner than it would under the provisions of Section of the Local Government Code. LisTCAA Need an easy way to reach out to other municipal attorneys and tap into their experience and expertise? Join the listserv by going to LisTCAA is a Web-based communication system that is intended to facilitate the direct exchange of information between member attorneys. It should be used to ask questions, share information, and collaborate on municipal law issues. We encourage you and others to join this complimentary service and participate whether you have a question, an answer, or just want to stay connected. For questions or assistance in signing up, please contact Scott Houston at shouston@tml.org or As a supplement to TCAA News, please check the TML Legislative Update Newsletter at: legis_update_current.asp and TML s Connect News Service at: Please contact Scott Houston, TCAA General Counsel, with your news, questions, and/or comments by at legalgovt@tml.org or by phone at 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