Open Meetings Act Lawsuit Comes to an End

March 29, 2013 Number 12 Open Meetings Act Lawsuit Comes to an End Last Monday, the U.S. Supreme Court denied the petition for writ of certiorari (i.e., request to hear the case) in Asgeirsson v. Abbott. The court s denial brings eight years of litigation to a close. The lawsuit, commonly referred to as TOMA II, was the second challenge brought by several city councilmembers who claimed with amicus support from the League that the criminal closed meeting provision of the Texas Open Meetings Act unconstitutionally infringes upon their right to freedom of speech. The legal result of the court s decision is that a previous Fifth Circuit Court of Appeals opinion upholding the Act is the law of the land in Texas. The practical result is that city attorneys still can t clearly advise on the legality of speaking with other councilmembers outside of a properlyposted open meeting. After the trial court rejected the city officials original claim that the criminal provision in the Act is unconstitutional, they appealed to the U.S. Court of Appeals for the Fifth Circuit. In September 2012, the Fifth Circuit Court of Appeals held that the Act is constitutional because it is aimed at prohibiting the negative 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. 1

The next step was to ask the U.S. Supreme Court to overturn the Fifth Circuit s opinion. TML and the National League of Cities filed a brief in support of the appeal, but to no avail. City officials are now left in the same place as before the appeal: They should use caution when communicating outside of an open meeting to avoid possible criminal prosecution. Senate Committee Considers Revenue Caps On March 25, the Senate Finance Subcommittee on Fiscal Matters heard two revenue cap bills (S.B. 102 and S.B. 144) that would restrict the ability of a city council to govern its own fiscal affairs. S.B. 102 (Patrick) would lower the property tax rollback rate from eight percent to five percent, and would require a mandatory ratification election of the citizens before the city could exceed the lowered rollback rate. S.B. 144 (Williams) would lower the rollback rate from eight to five percent, and allow the council to raise it back to eight percent during certain disasters or upon a finding that a higher rollback rate is necessary to protect health or safety. Over a dozen city officials attended the hearing to testify against the bills, highlighting numerous problems including the negative impact the bills would have on economic development, bond ratings, and on local control in general. City witnesses correctly pointed out that not only are city officials equally as concerned with keeping property taxes low as members of the state legislature, but that they are in a much better position to determine the appropriate amount of property taxes needed to respond to the needs of their citizens. The two bills were left pending in the Senate Finance Subcommittee on Fiscal Matters. To view the public testimony on the bill, click here and fast forward to 33 minutes and 10 seconds into the hearing. TCEQ Releases Updated Wastewater Treatment Guidelines The Texas Commission on Environmental Quality has updated its guidelines for initiating enforcement actions against wastewater treatment plants. Enforcement action is now triggered when the effluent level of a wastewater treatment plant exceeds its permitted limits for bacteria and certain non-bacterial contaminants. Implementation of these changes will be phased in, and enforcement efforts will initially focus on discharges that are impacting impaired water bodies. The changes to the enforcement criteria are available online at: http://www.tceq.texas.gov/assets/public/agency/eic-rev-14-120112.pdf A facility that does not yet have bacteria limits in its permit will need to begin sampling and troubleshooting to ensure compliance when the limits go into effect. More information about bacteria limits and testing is available at: http://www.tceq.texas.gov/assistance/water/wastewater/ww-bac-t.html 2

Significant Floor Actions H.B. 1600 (Cook), relating to the continuation and functions of the Public Utility Commission of Texas, and to the transfer of certain functions from the Texas Commission on Environmental Quality to the Public Utility Commission of Texas. Passed the House. S.B. 158 (Carona), relating to the average price below which a newspaper is exempt from the sales tax. Passed the Senate. S.B. 188 (Huffman), relating to interception of wire, oral, or electronic communications for law enforcement purposes. Passed the Senate. S.B. 531 (Duncan), relating to self-insurance funds established by governmental units. Passed the Senate. S.B. 581 (Carona), relating to procedures for securing the deposit of public funds. Passed the Senate. S.B. 764 (Watson), relating to a limitation on liability for prescribed burning conducted on land owned by, leased by, or occupied by certain self-insured governmental units. Passed the Senate. S.B. 902 (Fraser), relating to the operation, powers, and duties of certain water districts. Passed the Senate. Significant Committee Actions H.B. 434 (Riddle), relating to the person authorized to take a blood specimen from a vehicle operator to test for alcohol concentration or other intoxicating substances. Reported from the House Committee on Homeland Security and Public Safety. H.B. 561 (Workman), relating to an exemption for land owned by a school from the additional tax imposed on the change of use of land appraised for ad valorem tax purposes as qualified open-space land. Reported from the House Committee on Ways and Means. H.B. 898 (Creighton), relating to standards for power lines. Reported from the House Committee on State Affairs. H.B. 1478 (Eiland), relating to the selection of certain members of the board of directors of an appraisal district. Reported from the House Committee on Ways and Means. H.B. 1658 (P. King), relating to requiring the arrest and collection of a breath or blood specimen of persons operating a motor vehicle or watercraft while intoxicated under certain circumstances. Reported from the House Committee on Homeland Security and Public Safety. 3

S.B. 1 (Williams), relating to general appropriations. Reported from the House Committee on Appropriations. [Note: this is the state budget bill. Of particular interest to cities, the House committee substitute includes $307 million in mixed beverage tax reimbursements ($61.3 million more than the current biennium), $4.1 million in local library aid ($5.6 million less), $23.6 million in library resource sharing ($9.1 million more), $1.9 million in local parks grants ($987,500 more), and $29.8 million in automobile theft prevention funding ($15,059 less).] S.B. 204 (Nichols), relating to the continuation and functions of the Texas Board of Professional Engineers. Reported from the Senate Committee on Business and Commerce. S.B. 249 (Patrick), relating to the prosecution of the offense of breach of computer security. Reported from the Senate Committee on Criminal Justice. S.B. 262 (Huffman), relating to the reporting of criminal disposition completeness percentage data. Reported from the Senate Committee on Criminal Justice. S.B. 360 (Watson), relating to methods used by an animal shelter to euthanize a dog or cat. Reported from the Senate Committee on Health and Human Services. [Note: this bill would ban dog and cat euthanasia by carbon monoxide; if your city shelter is concerned by this provision, you should contact your legislators immediately.] S.B. 476 (Hinojosa), relating to installment agreements for the payment of delinquent ad valorem taxes. Reported from the Senate Committee on Intergovernmental Relations. S.B. 567 (Watson), relating to rates for water service and to the transfer of functions relating to the economic regulation of water and sewer service from the Texas Commission on Environmental Quality to the Public Utility Commission of Texas. Reported from the Senate Committee on Business and Commerce. S.B. 633 (Ellis), relating to liability of certain electric utilities that allow certain uses of land that the electric utility owns, occupies, or leases. Reported from the Senate Committee on State Affairs. S.B. 654 (West), relating to the enforcement of water conservation and animal care and control ordinances of a municipality by civil action or quasi-judicial enforcement. Reported from the Senate Committee on Intergovernmental Relations. S.B. 742 (Carona), relating to reports of missing children or attempted child abduction and to education and training for peace officers regarding missing or exploited children. Reported from the Senate Committee on Criminal Justice. S.B. 809 (Carona), relating to Public Utility Commission of Texas consideration of the rates for certain equalization surcharges and emergency service fees. Reported from the Senate Committee on Business and Commerce. 4

S.B. 1107 (Zaffirini), relating to the preference given by state and local governmental entities to agricultural products produced or grown in this state. Reported from the Senate Committee on Government Organization. S.B. 1110 (Nichols), relating to the purposes and designation of a transportation reinvestment zone. Reported from the Senate Committee on Transportation. FINANCE/ADMINISTRATION City-Related Bills Filed S.J.R. 64 (Carona) Gambling: would: (1) authorize the operation of casino games and slot machines by a limited number of licensed operators and certain Indian tribes; (2) tax poker proceeds; and (3) provide that part of the proceeds be allocated to a city in which a casino is located. PUBLIC SAFETY S.B. 1857 (Estes) Firearms: would provide that: (1) the Texas Department of Public Safety shall establish and maintain a school safety certification for qualified handgun instructors; and (2) the certification shall be used to instruct a person who holds a concealed handgun license and who is an employee of a school district or an open-enrollment charter school in the following: (a) best practices in the protection of students; (b) how to interact with the first responders on their arrival; (c) tactics to deny an intruder entry into a classroom or school facility; and (d) accuracy with handgun under duress. City Officials Testify When the legislature is in session, nothing compares to the effectiveness of city officials testifying at the Capitol. City officials who take their time to travel to Austin to speak out on important city issues should be applauded by us all. Among the city officials who recently testified in front of legislative committees are the following: Detective Eric Vickers, Police Department, Abilene P.D. Jackson, Police Department, Allen Mike Bass, Assistant Director Code Compliance, Arlington Jimmy Bennett, City Council, Arlington Commander Donald Baker, Police Department, Austin Greg Canally, Deputy CFO, Austin Virginia Collier, City Planner, Austin Sam A. Listi, City Manager, Belton 5

Bruce Hanson, City Council, Corinth Tom Tagliabue, Director of Intergovernmental Relations, Corpus Christi Patrick Welsh, Police Department, Dallas Bryan Langley, Assistant City Manager, Denton Chris Watts, City Council, Denton James Mauldin, City Treasurer, Fort Worth Christa Lopez Reynolds, Assistant City Attorney, Fort Worth Steven Catskill, Police Department, Houston Ron Walker, Police Department, Houston Sameera Kapasi Mahendru, Senior Assistant Attorney, Houston Max Duplant, Chief Financial Officer, Irving Jack Pratt, Mayor, Kerrville Raul Salinas, Mayor, Laredo David Hillock, Mayor, Little Elm Clayton Chandler, City Manager, Mansfield Bill Lane, Public Safety Director and Senior Staff Attorney, Mansfield Steve Lindsey, City Council, Mansfield Ramon Navarro, Deputy Director of Engineering, McAllen Bryan Easum, City Administrator, Mont Belvieu Ruben Villarreal, Mayor, Rio Grande City Ben Gorzell, Jr., Chief Financial Officer, San Antonio John Jacks, Assistant Director of Development, San Antonio James Jones, Police Department, San Antonio Roderick Sanchez, Development Department Director, San Antonio Gregory Wortham, Mayor, Sweetwater Dave Claunch, Mayor, West Lake Hills TML member cities may use the material 6 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.