Monthly Newsletter Archives 2024

Notice and Announcements

2024 TCAA Fall Conference: Last Call for Speakers

The Texas City Attorneys Association invites all attorneys interested in presenting at the 2024 TCAA Fall Conference, in Houston, to submit your ideas to Amber McKeon-Mueller at [email protected] by May 17, 2024.  This year’s conference will be held on October 10, 2024. Questions? Contact Amber McKeon-Mueller at [email protected] or 512-231-7400.

2024 TCAA Summer Conference!

The 2024 Summer Conference at Isla Grande Beach Resort in South Padre Island will take place June 12-14, 2024.

The TCAA Summer Conference is the best CLE program created specifically for municipal lawyers. Earn up to 12.00 hours MCLE credit (including 3.50 ethics hours)! Bring the family to experience everything South Padre Island has to offer and join us as we continue the TCAA tradition of excellence.

For more information, including housing, and to register for this conference, please go to: https://www.tcaasummerconference.org/.

Conference Topics Include:

• Extraterritorial Jurisdiction Issues
• Emergency Management
• Sovereign Citizens
• Revitalizing Cities: Tools for Innovative Development
• Condemnation and Multi-Agency TxDOT Projects
• Ethics
• And more!

SAVE THE DATE – UPCOMING TCAA EVENT!

The 2024 TCAA Fall Conference will take place on October 10, 2024, in Houston, and will be held in conjunction with the TML Annual Conference.

TCAA Online Membership Directory

Looking to find the contact information for a fellow TCAA member? You can find it using the TCAA membership directory, available here.

IMLA Membership

Membership with IMLA doesn’t just mean discounts to their events. It’s much more than that. Click here to view a quick video about IMLA membership.

Continuing Legal Education

2023 Fall Conference, 2023 Summer Conference, 2024 Riley Fletcher Seminar, and Paralegal Program Webinars

These TCAA online seminars are FREE, allowing TCAA members who are city attorneys, assistant city attorneys, or attorneys who regularly practice municipal law to view the videos from the conferences in a single–session format. Viewing a session allows attorneys to receive participatory CLE credit with the State Bar. To view these seminars, please visit tcaaonlineseminars.org. (Use the case-sensitive password “FreeCLE” to gain access to the sessions.)

Supreme Court Decides Impact Fee Case

By Amanda Karras, Executive Director/General Counsel, International Municipal Lawyers Association
In a unanimous opinion, the Supreme Court issued a narrow holding in Sheetz v. El Dorado County, a Takings case involving impact fees.  The Court held that legislatively enacted impact fees are not exempt from Nollan and Dolan but remanded to the lower court on all other arguments.

This case involves the County of El Dorado’s traffic impact mitigation fee, which it adopted via General Plan, to require new development to help finance the construction of new roads and widen existing roads.  The amount of the fee is set by formula after the County conducted a nexus study and generally, the fee was based on the location of the project (i.e., the specific geographic zone within the County) and the type of project (e.g., single-family residential, multi-family residential, general commercial).  In assessing the fee, the County does not make any “individualized determinations” as to the nature and extent of the traffic impacts caused by a particular project on state and local roads.
Mr. Sheetz, a resident of the County, applied for a building permit to construct a single-family home on his property. The County agreed to issue the permit on the condition that he pay the impact fee.  He paid and the permit was issued, but he then challenged the fee as invalid under the Takings Clause of the Fifth Amendment.  He argued that the fee was an unconstitutional condition under Nollan and Dolan as the County did not make an individualized determination that an “essential nexus” and “rough proportionality” existed between the traffic impacts caused by his project and the need for improvements to state/local roads.   

The California Court of Appeals held that the Nollan and Dolan “essential nexus” and “rough proportionality” tests do not apply to legislative exactions that are generally applicable to a broad class of property owners like the one at issue in this case.

In a 9-0 decision authored by Justice Barrett, the Supreme Court reversed, concluding that “[t]he Takings Clause does not distinguish between legislative and administrative permit conditions.”  The Court reasoned that the text, history, and precedent support its conclusion that legislatures are not exempt from the Takings Clause. And because the Takings Clause applies equally to legislators and administrators, it “prohibits legislatures and agencies alike from imposing unconstitutional conditions on land-use permits.”

The Court acknowledged that the area of permit conditions is “complicated.”  But, the Court explained, where a building permit is conditioned on something unrelated to the land-use interest Nollan and Dolan will apply.  Nollan requires an “essential nexus” between the condition and the government’s land-use interest.  While Dolan requires the conditions to have “‘rough proportionality’ to the development’s impact on the land-use interest.”

The Court’s narrow ruling was not entirely surprising after oral argument as it noted that the parties agreed on this bottom line holding as the County conceded at oral argument that “building permits are not exempt from scrutiny under Nollan and Dolan just because a legislature imposed them.”   The silver lining was that in reaching this narrow holding, the Court declined to address any other arguments “including whether a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.”  In other words, the Court did not rule on Mr. Sheetz’s arguments that Nollan and Dolan require local governments to make individualized determinations regarding the impact fees.

Importantly, the decision does not prevent local governments from enacting reasonable permitting conditions, including impact fees, via legislation.  Though local governments will want to ensure that all such legislatively imposed impact fees comply with Nollan and Dolan’s requirements.  And local governments may expect challenges by litigants in this area to ensure compliance with the heightened scrutiny required under these precedents.

Although the decision was unanimous, it resulted in three separate concurrences. The main disagreement appeared to be between Justice Gorsuch, who wrote only for himself, and Justice Kavanaugh, who wrote for himself, as well as Justices Kagan and Jackson.  Justice Kavanaugh explains that the majority decision does not “address or prohibit the common government practice of imposing permit conditions, such as impact fees, on new developments through reasonable formulas or schedules that assess the impact of classes of development rather than the impact of specific parcels of property.”  Justice Gorsuch’s concurrence notes that Nollan and Dolan do not “distinguish[] between government actions against the many and the few.”  This issue will warrant further development in the lower courts and local governments will want to ensure they advocate for positions that do not require individualized inquiries into these legislatively enacted fees.
The Local Government Legal Center filed an amicus brief joined by IMLA, NACo, NLC, and GFOA authored by Austin Yang, Kristen Jensen, & Giulia Gualco-Nelson with the City and County of San Francisco. In the brief, the LGLC argued that legislatively enacted, generally applicable impact fees should not be subject to Nollan and Dolan.  But more fundamentally, the brief emphasized the importance and ubiquity of legislatively enacted impact fees and stressed that the Court should not require individualized determinations for these fees as doing so would wreak havoc on development.  The brief also educated the Court on nexus studies and the importance of impact fees more broadly.

To read the decision, click here: https://www.supremecourt.gov/opinions/23pdf/22-1074_bqmd.pdf
To read the amicus brief, click here: https://www.supremecourt.gov/DocketPDF/22/22-1074/293745/20231219142028486_22-1074%20bsac%20BOM%20FINAL%20for%20filing.pdf

TCAA/TML Legal Defense Program: Amicus Briefs and Comments Filed

TCAA, in conjunction with the Texas Municipal League, files amicus briefs and comments in support of cities on many issues. To keep up to date on the status of these issues, go to: https://www.tml.org/DocumentCenter/View/2553/AmicusBriefUpdate

Recent Federal Fifth Circuit Cases of Interest to Cities

Note: Included cases are from April 1, 2024, through April 30, 2024.

Religious Freedom: Perez v. City of San Antonio, 98 F.4th 586 (5th Cir. 2024). Gary Perez and Matilde Torres, members of the Lipan-Apache Native American Church, sued the City of San Antonio over a park development plan at Brackenridge Park. They alleged the plan interfered with their ability to conduct religious ceremonies, as it involved the removal of trees and the management of bird populations which are integral to their religious beliefs. They claimed violations of the Free Exercise Clause, the Texas Religious Freedom Restoration Act (TRFRA), and the Texas Constitution. The district court granted limited injunctive relief allowing access for certain ceremonies but denied broader requests to halt tree and bird management activities. Perez and Torres appealed and filed an emergency motion for an injunction pending appeal. The appellate court determined the request for injunction to restore access for routine personal worship was moot since the city had already removed obstructions allowing access. The court also found that the city’s tree and bird management plans did not substantially burden the plaintiffs’ religious practices. The city demonstrated a compelling governmental interest in its park management plans, including public safety and environmental protection, and successfully demonstrated that the tree and bird management plans are integral to the park’s continued structural and environmental management and narrowly tailored to achieve these interests without excessively infringing on religious practices. With regard to the injunction request, the plaintiffs failed to show a likelihood of success on the merits for their claims under the Free Exercise Clause, TRFRA, and Texas Constitution; consequently, the court denied their emergency motion.

Building Codes:  Schnell v. State Farm Lloyds, 98 F.4th 150 (5th Cir. 2024). The roof of Carl and Mary Ellen Schnell’s home experienced damage in a hailstorm. The roof was covered with tiles that were no longer available on the market; consequently, their homeowners association required a full roof replacement to ensure proper aesthetics, leading the Schnells to file a claim with their homeowner’s insurance policy holder, State Farm. The policy included coverage for increased costs due to enforcement of building codes (“Option OL”). After an appraisal, State Farm paid for direct physical losses but denied the building code upgrade costs, stating that the HOA’s requirements did not constitute “enforcement” under Option OL. The Schnells ultimately sued State Farm, with the district court subsequently granting summary judgment in favor of State Farm. The Schnells appealed.

Of interest to cities, a determination by Evan Roberts, the Fort Worth Building Code Administrator, was central to the appeal. Roberts indicated that if the new tiles could not interlock with the existing, undamaged tiles, this would cause improper water drainage, and the roof would not meet the city’s building code requirements. The appellate court focused on whether Roberts’s decision constituted a building code enforcement under the insurance policy. The Fifth Circuit vacated the summary judgment holding that genuine issues of material fact existed about whether Roberts’s position constituted “building code enforcement” triggering a full roof replacement and whether State Farm’s payment was delayed under the Texas Prompt Payment of Claims Act and remanded the case to district court for further proceedings.

Civil Rights: Castro v. Kory, No. 23-50268, 2024 WL 1580175 (5th Cir. Apr. 11, 2024). Jose Castro, a delivery driver, was awakened and arrested by San Antonio police officers while napping in his truck during a work break. The officers suspected Castro of wrongdoing but found no evidence of any criminal activity after searching his truck and personal effects. Castro sued the officers for violations of his Fourth and Fourteenth Amendment rights, claiming unlawful seizure, illegal search, excessive force, and failure to intervene. The district court granted the officers qualified immunity on the initial seizure but denied it concerning the prolonged arrest, the truck search, the use of excessive force, and failure to intervene. The officers appealed these denials. The Fifth Circuit reviewed the denial of qualified immunity. The court accepted Castro’s version of facts as true for the purpose of this appeal and assessed whether the officers’ actions violated clearly established constitutional rights.

The appellate court reversed the district court’s decision in part and affirmed in part. It reversed the district court and granted qualified immunity on the prolonged arrest claim. The court noted that even though the officers detained Castro for about 45 minutes post-clearance of the scene, such detention did not constitute a significant restraint on liberty that would violate the Fourteenth Amendment, as Castro was arrested with probable cause. The court affirmed the denial of qualified immunity on the illegal search claim. It rejected the applicability of the search-incident-to-arrest and inventory search exceptions, noting that Castro was not within reaching distance of the vehicle during the search and that the search was conducted for investigatory rather than inventory purposes. The Fifth Circuit affirmed the denial of qualified immunity for the excessive force claim. It emphasized that the officers used disproportionate force, including pointing firearms at an unarmed and confused Castro who posed no credible threat to their safety. The court also affirmed the denial of qualified immunity on the failure to intervene claim, noting that the officers had the opportunity and obligation to prevent the constitutional violations but did not act.

Civil Rights; Employment: Anderson v. Harris Cnty., 98 F.4th 641 (5th Cir. 2024). Marcus Anderson and Reed Clark, current and former employees of Harris County, filed a § 1983 lawsuit against Harris County, claiming their First Amendment rights were violated by Constable Christopher Diaz, who allegedly made employment decisions based on the employees’ participation in and contributions to his election campaign. The district court dismissed the claims, ruling that Diaz was not a policymaker for Harris County; therefore, the county could not be held liable under § 1983 for his actions. The court affirmed that a constable serving a single precinct, like Diaz, does not have policymaking authority over employment-related decisions for the entire county. As such, Diaz’s actions did not represent official county policy. The court also rejected the plaintiffs’ argument that Harris County could be liable under a delegation or rubber-stamp theory. It found no evidence that the county delegated authority to Diaz to make county-wide employment decisions or that the Harris County Commissioners Court rubber-stamped Diaz’s decisions. Finally, the court held that Diaz’s alleged violations of the plaintiffs’ First Amendment rights did not implicate Harris County because there was no county policy or custom endorsing such violations. Ultimately, the Fifth Circuit affirmed the district court’s dismissal of the claims against Harris County, agreeing that Diaz was not a county policymaker and his actions did not reflect county policy or custom.

Civil Rights: Dawes v. City of Dallas, No. 22-10876, 2024 WL 1434454 (5th Cir. Apr. 3, 2024). Genevieve Dawes and Virgilio Rosales were sleeping at an apartment complex in a parked vehicle that had been reported stolen. City of Dallas police officers approached the vehicle, which was boxed in by other cars and fences. After failing to see inside due to fogged windows and mistakenly believing the vehicle was unoccupied, officers were surprised to find it occupied. They demanded that Rosales and Dawes show their hands, but they started the vehicle and it began to move forward and in reverse. Two officers opened fire, and Genevieve Dawes was fatally shot. Rosales and Dawes’ estate filed excessive force suits against the two officers and the City of Dallas, and the officers prevailed on qualified immunity grounds at summary judgment. The plaintiffs appealed. For its qualified immunity analysis, the Fifth Circuit focused on whether the officers violated a constitutional right that was clearly established at the time. Ultimately, the court upheld the district court’s summary judgment in favor of the officers, concluding that they were entitled to qualified immunity as no clearly established law was violated. This decision was based on the specifics of the confrontation, including the presence of a reportedly stolen vehicle, the nighttime setting, the officers’ warnings, and the immediate circumstances leading to the use of deadly force. The court emphasized the high threshold for overturning qualified immunity, noting that plaintiffs must point to specific precedent showing a clear violation under similar circumstances, which they failed to do. With regard to the case against the City of Dallas, that was remanded to the trial court for further consideration, suggesting that the district court may need to reassess or expand on its findings regarding the city’s potential liability under different theories, such as failure to train or municipal liability.

Recent Texas Cases of Interest to Cities

Note: Included cases are from April 1, 2024, through April 30, 2024.

Contractual Immunity: San Jacinto River Auth. v. City of Conroe, No. 22-0649, 2024 WL 1590001 (Tex. Apr. 12, 2024). This case looks at the scope of the statutory waiver of immunity under Chapter 271 of the Local Government Code (Chapter 271) for contractual claims against local government entities.

At issue were contracts that obligated two cities to buy surface water from a river authority. When a dispute over fees and rates arose, the cities stopped paying their complete balances, and the authority sued the cities to recover those amounts. The trial court granted the cities’ plea to the jurisdiction, and the court of appeals affirmed on the ground that the authority did not engage in pre-suit mediation as the contracts required. The river authority petitioned for review.

The Supreme Court held that neither the contractual procedures for alternative dispute resolution, which are enforceable against local governments under Section 271.154 of the Local Government Code, serve as limits on the waiver of immunity set out in Section 271.152, nor does the parties’ agreement to mediate apply to the authority’s claims. The Court also rejected the cities’ alternative argument that the agreements did not fall within the waiver because they failed to state their essential terms. Accordingly, the Court reversed and remanded to the trial court for further proceedings to resolve the authority’s claims on the merits.

Contractual Immunity: Campbellton Rd., Ltd. v. City of San Antonio by & through San Antonio Water Sys., No. 22-0481, 2024 WL 1590000 (Tex. Apr. 12, 2024). A property developer, which owned 585 acres within city’s extra-territorial jurisdiction, brought a breach of contract and declaratory judgment action against the city by and through the city’s water utility, arising from utility’s agreement with the developer that the utility would provide sewer service for proposed residential developments on the developer’s property. The trial court denied the city’s plea to the jurisdiction and motion to dismiss for lack of subject matter jurisdiction. On appeal, the San Antonio Court of Appeals reversed and remanded, finding Chapter 271 of the Local Government Code (Chapter 271) did not apply to waive the city’s immunity. The developer filed a petition for review.

The Supreme Court reversed and remanded, finding that the following supported waiver of the city’s sovereign immunity under Chapter 271: (1) the developer sufficiently pleaded that a written, bilateral contract was formed; (2) the developer sufficiently pleaded that a written, unilateral contract was formed; (3) the contract terms contemplated that the utility had a right to the developer’s participation in the project upon contract signing, as would support waiver of city’s sovereign immunity under the Chapter 271; (4) the contract terms contemplated provision of payment to the developer; and (5) the developer sufficiently pleaded that the contract contemplated provision of services to the utility, as required to trigger waiver of sovereign immunity.

Employment: Harris Ctr. for Mental Health & IDD v. McLeod, No. 01-22-00947-CV, 2024 WL 1383271 (Tex. App.—Houston [1st Dist.] Apr. 2, 2024) (mem. op.). McLeod sued the Harris Center for Mental Health & IDD for disability discrimination under the Texas Commission on Human Rights Act (TCHRA). She alleged that the Harris Center retaliated against her after she decided not to accept an offer to accommodate her disability by transferring to a different clinic. She also claimed Harris Center failed to accommodate her request for consistent lunch breaks. The Harris Center filed a plea to the jurisdiction claiming governmental immunity, a response raising various defenses to McLeod’s claims, and a motion for summary judgment. The trial court denied Harris Center’s plea to the jurisdiction and motion for summary judgment, and Harris Center appealed.

The appellate court reversed, holding that: (1) the Harris Center was a governmental entity under the TCHRA and therefore was entitled to immunity; and (2) because McLeod did not raise a fact issue regarding whether she engaged in a protected activity for her retaliation claim, her claims did not fall under the TCHRA’s waiver of immunity.

Employment: Tex. Woman’s Univ. v. Casper, No. 02-23-00384-CV, 2024 WL 1561061, (Tex. App.—Fort Worth Apr. 11, 2024). This case presents an issue of first impression: whether, under the election-of-remedies provision in the Texas Commission on Human Rights Act (TCHRA), a plaintiff who has filed a federal action based on allegedly unlawful employment practices is barred from filing a duplicative TCHRA complaint even if she abandons her earlier-filed federal action.

Texas Woman’s University (TWU) argued yes and filed a plea to the jurisdiction. Casper contended that the election-of-remedies provision bars a TCHRA complaint only if the earlier-filed federal action remains pending or has been resolved. The trial court denied TWU’s plea.  TWU filed an interlocutory appeal.

The appellate court determined that under the plain language of the TCHRA’s election-of-remedies provision, an “initiated” federal action is what triggers the prohibition on filing a duplicative TCHRA complaint. Because Casper did not dispute that she “initiated” her federal action before filing her TCHRA complaint, and because she did not dispute that both challenged the same allegedly unlawful employment practices, the court reversed the trial court’s order.

Tort Claims Act: City of Springtown v. Ashenfelter, No. 02-23-00204-CV, 2024 WL 1792380 (Tex. App.—Fort Worth Apr. 25, 2024) (mem. op.).  Kalie Ashenfelter sued the City of Springtown after she was involved in an automobile collision with a city police officer. The city appealed the trial court’s denial of its combined motion for no-evidence and traditional summary judgment, asserting that it was entitled to immunity based on (1) the police officer’s official immunity and (2) the emergency exception to the Texas Tort Claims Act’s (TTCA) waiver of immunity. The appellate court affirmed the trial court’s order denying the city’s combined motion concluding that the city was not entitled to a no-evidence summary judgement and that evidence attached to the city’s traditional motion for summary judgement raised a fact issue as to whether governmental immunity was waived.

Employment: Mendoza v. City of Round Rock, No. 03-23-00235-CV, 2024 WL 1642920 (Tex. App.—Austin Apr. 17, 2024) (mem. op.). In 2019, Irma Mendoza retired from the city of Round Rock in lieu of termination after the city conducted an internal investigation into complaints it had received about Mendoza. Claiming the city’s action against her involved age discrimination in violation of the Texas Commission on Human Rights Act (TCHRA), she filed an administrative charge with the Equal Employment Opportunity Commission (EEOC). After reviewing the charge, the EEOC notified Mendoza it would not investigate further and issued her a right-to-sue letter dated June 10, 2020. In its letter, the EEOC noted it had received her administrative charge on June 2, 2020. Then, on June 9, 2022, Mendoza sued the city. In response, the city filed a plea to the jurisdiction claiming governmental immunity, arguing Mendoza’s lawsuit was untimely as she failed to file her lawsuit within two years of submitting her charge to the EEOC. The district court granted the city’s plea, and Mendoza appealed thereafter. In affirming the lower court’s decision, the court of appeals concluded that although Mendoza claimed a discrepancy with the date on the EEOC letter, there was sufficient evidence in the record to support a finding that Mendoza’s administrative charge was submitted to the EEOC on June 2, 2020, and by filing her lawsuit on June 9, 2022, she failed to strictly satisfy the TCHRA procedural requirements.

Tort Claims Act: City of Austin v. Kalamarides, No. 07-23-00400-CV, 2024 WL 1422741 (Tex. App.—Amarillo Apr. 2, 2024) (mem. op.). The plaintiff sued the city for injuries he suffered in a car accident with a city police officer who was responding to an emergency call. The plaintiff claimed his light was green and that the police officer did not have lights or sirens on. The city claimed the officer did have the vehicle’s lights and sirens activated. The city filed a plea to the jurisdiction based on the “emergency exception.” The trial court denied the plea.

On appeal, the court reversed and rendered judgment in favor of the city. The court found the city retained its immunity under the emergency response exception because record did not reveal a fact issue as to whether the officer acted in a way that posed a high degree of risk or serious injury to others when responding to an emergency. The video evidence capturing the minutes preceding the collision confirmed that as the officer entered the intersection, she was proceeding slowly, with her vehicle’s lights and siren activated.

Immunity: City of Dallas v. Ahrens, No. 10-23-00315-CV, 2024 WL 1573388 (Tex. App.—Waco Apr. 11, 2024 (mem. op.). Following a sniper shooting that resulted in the death of five Dallas police officers, the city contracted with a charitable organization, Assist the Officer Foundation (ATO), to process and distribute mail, including checks and cash, received by the city for the benefit of the families of the officers who were killed.  Believing that ATO mishandled the funds, and because ATO refused to release cash they claim to be legally entitled to, Katrina Ahrens and her children sued ATO, the city and others seeking damages in connection with the city’s handling of donations sent to the city after her husband’s line of duty death.

In its plea to the jurisdiction, the city contended that it was immune from suit arising out of its governmental functions. The city specifically asserted that the complained-of activities, its handling of mail sent to the city, fell within the governmental function of police protection and control. The trial court denied the plea, and the city appealed.  The appellate court affirmed the trial court’s order, finding when the city entered into an agreement with ATO it engaged in a proprietary function.

Tort Claims Act: City of Houston v. Taylor, No. 14-22-00629-CV, 2024 WL 1403949 (Tex. App.—Houston [14th Dist.] Apr. 2, 2024) (mem. op.). Percy Taylor sued the City of Houston after being involved in a collision with a city ambulance. The city claimed immunity under the Texas Tort Claims Act, arguing that the ambulance was responding to an emergency, which if proven, exempts the city from liability. The trial court denied the city’s motion for summary judgment and plea to the jurisdiction. The Texas Tort Claims Act may waive immunity for injuries caused by the operation of motor-driven vehicles unless the injury arises from actions taken during emergency responses. The question in this case was whether the ambulance was actively responding to an emergency when the collision occurred. The evidence presented showed conflicting accounts of the situation. The ambulance driver indicated that they were transporting a critically ill patient with possible sepsis to the hospital under emergency conditions with lights and sirens activated. Contradictory testimony and a Houston Fire Department incident report suggested that the patient was stable and that the transportation was at the patient’s choice, without emergency lights and sirens. The appellate court affirmed the trial court’s decision, finding that factual disputes about the emergency status of the ambulance trip precluded summary judgment. The court concluded that the trial court correctly denied the city’s plea to the jurisdiction and MSJ.

Tort Claims Act: City of Houston v. Caro, No. 14-23-00319-CV, 2024 WL 1732278 (Tex. App.—Houston [14th Dist.] Apr. 23, 2024) (mem. op.). Lucy Caro, a flight attendant, was injured at Bush Intercontinental Airport, which is owned by the City of Houston, when she slipped on water beneath an air conditioning vent. In response to Caro’s lawsuit, the City of Houston filed a plea to the jurisdiction, which the trial court denied. On appeal, the city challenged the trial court’s denial of its plea to jurisdiction, arguing that it did not have actual knowledge of the hazard, and thereby maintained its immunity under the Texas Tort Claims Act. The court evaluated whether the City of Houston had actual knowledge of the hazard. Evidence showed longstanding issues with condensation at the airport, which were known to city staff. Despite prior observations of water accumulation and temporary remediation measures, no permanent solution was implemented, and no warning signs were present at the time of Caro’s fall. The appellate court held that evidence of the city’s awareness of the recurring condensation issue, combined with the specific observations made by city staff shortly before Caro’s injuries, established a fact issue regarding the city’s knowledge of the dangerous condition. The court also found fact issues regarding whether Caro knew about the hazard and whether the city failed in its duty of care. Ultimately, the court affirmed the trial court’s decision, holding that the evidence raised sufficient fact issues to deny the city’s plea to the jurisdiction, allowing Caro’s suit to proceed against the City of Houston for her injuries. The case was remanded for further proceedings concerning the city’s knowledge and the adequacy of its remedial actions.

Charter; Property Tax: Jones v. Whitmire, No. 14-23-00550-CV, 2024 WL 1724448 (Tex. App.—Houston [14th Dist.] Apr. 23, 2024). The dispute centers on whether the City of Houston’s City Council correctly allocated ad valorem tax revenues to the Dedicated Drainage and Street Renewal Fund (Drainage Fund) as mandated by the city’s charter. Taxpayers James Robert Jones and Allen Watson contested that the city council underfunded the Drainage Fund by applying incorrect methodology to calculate the required allocation. The city disagreed, resulting in lengthy litigation. Houston’s Charter requires an allocation to the Drainage Fund based on proceeds from $0.118 per $100 of the city’s ad valorem tax levy, adjusted for debt service for certain bonds. The Taxpayers argued that the city council allocated significantly less than what was required, while the city council contended that their allocation methodology was aligned with the charter and influenced by another charter provision which limits growth in tax revenue collections (Revenue Cap). After the case was escalated to the Texas Supreme Court and remanded back, the trial court ruled in favor of the city. The Taxpayers appealed, disputing the council’s methodology, arguing that it deviated from the charter’s directives. The appellate court in this case sided with the Taxpayers, determining that the city’s methodology of allocating funds to the Drainage Fund was incorrect. The court ruled that the full 11.8 cents per $100 of taxable property value should be allocated to the Drainage Fund before deducting debt service obligations, and without the application of the Revenue Cap to the allocation formula. The appellate court reversed the trial court’s decision, instructed the city to follow the charter’s explicit allocation formula, and enjoined the city from using an incorrect methodology. The Taxpayers’ request for mandamus relief was denied as they obtained an adequate remedy by appeal.

Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from April 1, 2024, through April 30, 2024.

KP-462 (Conflicts): Texas Constitution, article XVI, section 40, prohibits one person from holding more than one office of emolument at the same time. An individual may not simultaneously serve as a compensated municipal judge and a constable. While it is for the State Commission on Judicial Conduct to discipline judges, certain canons of the State Code of Judicial Conduct likely prevent a municipal judge from simultaneously holding a position as a law enforcement officer. In particular, the State Commission on Judicial Conduct has issued a public statement condemning the practice of a judicial officer concurrently serving as a law enforcement officer due to separation-of-powers concerns.

The common-law doctrine of incompatibility prohibits the simultaneous holding of two offices with conflicting loyalties. As a peace officer, the constable’s duties could require the constable to appear before the municipal judge as magistrate, rendering the two positions incompatible. Moreover, such concurrent service implicates the concerns raised by the State Commission on Judicial Conduct. Accordingly, a court would likely conclude that a municipal judge may not simultaneously serve as a constable.

Under either article XVI, section 40, or common-law incompatibility, acceptance of a second office incompatible with the first office results in effective resignation from the first office. Thus, when the individual at issue accepted the incompatible office of municipal judge he effectively resigned from the office of constable.

A municipal judge is not required to comply with the provision in Canon 5(3) of the State Code of Judicial Conduct calling for a judge to resign from judicial office before becoming a candidate in a contested election for a non-judicial office.