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/p/AmicusBriefUpdate_081517.pdf.

Governmental Immunity: City of Dallas v. Trinity East Energy, Cause No. 17-0370, Supreme Court of Texas. This case involves a dispute between the City of Dallas and Trinity East Energy (“Trinity”) over an oil and gas lease on city-owned lands. After Trinity was denied a special use permit to drill on city parkland, Trinity filed suit asserting that the permit denial was a taking. The trial court granted the city’s pleas to the jurisdiction on all but one claim. Both the city and Trinity appealed the trial court’s decision. The appellate court held that the city’s engaging in a mineral lease on parkland is a proprietary function and no waiver of immunity was required for Trinity’s claims.

In support of the city’s petition for review, the Texas Municipal League (TML) and the Texas City Attorneys Association (TCAA) argue that the Texas Supreme Court has provided that the Tort Claims Act should be relied on when determining whether a contract is governmental or proprietary. Thus, because the Tort Claims Act lists “parks” as a governmental function, the city is protected from Trinity’s claims by governmental immunity. TML and TCAA filed this brief on August 8, 2017.

Payday Lending Ordinance: State v. The Money Store, L.P., Cause No. C-1-CR-17-100026 and State v. ASCO of Texas, L.P., Cause No. C-1-CR-17-100025, in Travis County Court at Law Number Two. In two City of Austin municipal court orders issued on March 1, 2017, the municipal court granted separate motions to quash on the grounds that the city’s payday ordinance was preempted by Section 393.602(b) of the Texas Finance Code.   The City of Austin appealed to county court. The Texas Municipal League (TML), joined by the cities of Amarillo, Garland, and Waco, argued that the municipal court misapplied state preemption law, and explained both the policy and practical consequences of judicial preemption.  TML also argued there exists a reasonable construction that leaves both Section 4-12-22(D) of the Austin City Code and Texas Finance Code Section 393.602(b) in effect. The statute provides that a fee is to be calculated on a daily, biweekly, monthly, or on another periodic basis, while the ordinance requires repayment in no more than four installment payments without regard for the basis upon which the fees are calculated. The brief was submitted on August 1, 2017.

Electric Transmission Line RoutingApplication of LCRA Transmission Services Corporation to Amend its Certificate of Convenience and Necessity for the Proposed Leander to Round Rock 138-Kv Transmission Line in Williamson County; PUC Docket No. 45866.  This application relates to the location of a major electric transmission line.  The Texas Municipal League submitted comments on what constitutes “community values.”  TML argued that the Public Utility Commission need not make the determination largely on questionnaires and emails sent only to those directly in the path of proposed transmission lines.  Those people can’t be representative of an entire city and its extraterritorial jurisdiction.  Rather, the Commission should rely on the comprehensive planning processes of the affected cities.  The Cities of Cedar Park, Leander, and Round Rock have pre-prepared explanations of community values in the form of their comprehensive plans, and those plans should form the basis of the Commission’s decisions.  The comment was filed on December 19, 2016.  On June 6, 2017, the Commission ultimately adopted a different route than that requested by the cities, and concluded that the agreement of the cities based on their comprehensive plans doesn’t represent community values.  The cities filed a motion for rehearing, and TML filed comments in support of the rehearing on July 24, 2017.

F.C.C. Preemption:  WT Docket No. 17-79: Notice of Proposed Rulemaking and Notice of Inquiry (Wireless Infrastructure NPRM) at the Federal Communications Commission.  The Texas Municipal League argued that, in relation to the installation of wireless facilities in city rights-of-way, a one-size-fits-all mandate simply won’t work because there are so many unique Texas cities with unique right-of-way needs.  TML supported the comments submitted by the National League of Cities (NLC), and joined NLC in opposing federal preemption, deemed granted remedies, and further federal restrictions on aesthetic requirements and negotiations.  TML argued that it’s clear that locally-elected officials, rather than administrative officials in Washington, D.C., know what is best for their community.  The comments were submitted on July 17, 2017.

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