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 http://www.tml.org/p/AmicusBriefUpdate_011316.pdf.

Contractual Immunity: Wheelabrator v. CPS Energy, No. 15-0029, in the Supreme Court of Texas. TML and TCAA filed an amicus brief in support of the City of San Antonio (CPS Energy). This is the second iteration of this case. Previously the Texas Supreme Court refused to grant Wheelabrator’s petition after the San Antonio Court Appeals concluded that the proprietary-governmental dichotomy found in the Texas Tort Claims Act did not apply to breach of contract claims. In this claim, Wheelabrator claims they are entitled to attorney’s fees because the underlying claim involves the city performing a proprietary function. Our brief provides the policy and legal basis for the legislature’s waiver of governmental immunity in the limited circumstance of a written contract.  We argue that the proprietary-governmental dichotomy does not apply to waiver of immunity claims in the contract setting. Thus, Wheelabrator is not entitled to recover attorney’s fees. The brief was filed on January 12, 2016.

Contractual Immunity: Wasson Interests v. City of Jacksonville, No. 14-0645, in the Supreme Court of Texas. TML and TCAA filed an amicus brief in support of the City of Jacksonville.  Wasson Interests filed suit against the City of Jacksonville asserting breach of contract related to a lease agreement the city entered into with Wasson.  The trial court granted the City of Jacksonville’s plea to the jurisdiction, and the appeals court affirmed that decision. Wasson filed a petition to the Supreme Court of Texas, which was granted. Our brief provides the policy and legal basis for the legislature’s waiver of governmental immunity in the limited circumstance of a written contract.  We argue that the proprietary-governmental dichotomy found in the Texas Tort Claims Act does not apply to waiver of immunity claims in the contract setting. Additionally, a lease agreement is not a contract that is subject to the Chapter 271 waiver. The brief was filed on January 11, 2016.

Public Health Service Fee: Rule Project Number 2015-031-290-AD, Proposed Rulemaking Chapter 290, Public Drinking Water, HB 1: Public Health Service Fee Increase. The Texas Commission on Environmental Quality (TCEQ) published proposed rules on December 4, 2015, increasing the maximum Public Health Service Fee.  With this particular proposed rule, TCEQ seeks to raise the Public Health Service Fee, which is a fee collected from operators of public drinking water systems. The maximum fee for the smallest systems with fewer than 25 connections will increase by $100. The maximum fee for small systems with 25-160 connections will increase by $125. The maximum fee for a system with 161 or more connections will almost double, increasing from $2.15 to $4.00 per connection. TML filed comments requesting that rather than forcing cities to impose a state tax increase, the legislature provide adequate funding to TCEQ. The comment was filed on December 28, 2015.

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