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

Right-of-Way Fees: Public Utilities Commission Docket No. 45280, Complaint of Extenet Network Sys., Inc. against the City of Houston for imposition of fees for use of public right-of-way. In this proceeding at the Public Utility Commission (PUC), a certificated telecommunications provider is asking the PUC to allow it to place wireless telecommunications equipment in a city’s rights-of-way without paying compensation to the city. TML, along with the Texas Coalition of Cities for Utility Issues, filed an amicus reply brief arguing that Chapter 283 of the Local Government Code does not contemplate free use by wireless providers. Amici argue that a city’s control over its rights-of-ways necessitates a separate agreement for such placement, and state law prohibits doing so without adequate compensation. The brief was filed on February 17, 2016.

Employment Law:  City of Houston v. Zamora, No. 15-868 in the Supreme Court of the United States.  This case concerns the “cat’s paw” theory of liability.  The theory gets its name from the fable of a 17th Century French poet, about a monkey who persuaded a cat to pull chestnuts out of the fire, so the cat gets burned and the monkey makes off with the chestnuts.  In the workplace context, the employer gets the legal blame even if the actual supervisor who fires or demotes a worker or refuses promotion does not act out of a biased intent, but rather because the bias of another supervisor along the way worked its way into the final decision.  The final decision-maker is the cat and the biased supervisor is the monkey.  The theory is designed to punish employers who rubber-stamp the illegal animus of their supervisors, but the Fifth Circuit applied it in this case despite the city’s robust and independent investigation process designed to get to the bottom of the underlying incidents.  In the case below, the Fifth Circuit reasoned that the law “simply requires that the supervisor’s influence with the decision-maker be strong enough to actually cause the adverse employment action.”  The Texas Municipal League, joined by the Texas Association of Counties and the State of Texas (through the Solicitor General’s Office), argued that thousands of Texas local governmental employers have adopted employee grievance procedures for the purpose of  preventing illegal discrimination and retaliation, which gives them a strong interest in the Court’s resolution of the City of Houston’s second question in its petition:  “whether the ‘cat’s paw’ theory of liability extends to employment actions taken after an extensive internal review process that considers testimony from nearly two dozen witnesses and provides multiple layers of independent review, including an independent review board with citizen involvement.”  The review in this case included an investigation by the Internal Affairs Division (IAD), which took statements from some 22 witnesses before determining that Officer Zamora had been untruthful on multiple occasions.  Only three of those 22 witness statements came from the supervisors who Zamora alleged to have had a retaliatory motive.  The IAD file, with its determination of Zamora’s untruthfulness, was then reviewed in full by Houston Police Department’s nine-member Administrative Disciplinary Committee (consisting of five officers and four civilians), which agreed that Zamora had been untruthful and recommended that he be suspended.  The ADC’s recommendation was then evaluated by the Chief of Police, who decided to impose a 10-day suspension on Officer Zamora.  Essentially, the Amici argued that the city’s disciplinary review system is designed to ensure that any discipline an officer might receive would be based on his own conduct, rather than be unduly influenced by his supervisor.  As such, the cat’s paw theory should not be applied here.  The brief was filed February 9, 2016.

Water:  Coyote Lake Ranch, LLC v. City of Lubbock, No. 14-0572 in the Supreme Court of Texas on petition for review. The issue in this case is whether the oil and gas accommodation doctrine should be applied to groundwater as a severed estate in determining which entity or individual has the greater right to access or use groundwater. TML and TCAA filed a brief arguing that the accommodation doctrine should not be extended to groundwater because: (1) that doctrine has never applied to water; and (2) it would cause uncertainty in the provision and retention of groundwater for cities throughout Texas. The brief asked that the Court affirm the Amarillo Court of Appeals’ judgment. The brief was filed on February 9, 2016.

Licensed Handgun Carry:  RQ-0087-KP, Requirements for a municipality’s posting of notice regarding the carrying of handguns. The Texas Municipal League submitted to the attorney general’s office a TML paper titled “Cities and Firearms” for that office to use as a resource in opining on the request. The comment was filed on January 26, 2016.