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_031416.pdf.

Manufactured Housing: City of Anahuac v. Morris, No. 16-0082 in the Supreme Court of Texas. In this case, the court is asked to review two manufactured housing statutes from Chapter 1201 of the Occupations Code to determine whether a city can enforce its manufactured housing ordinances when: (1) the city is in a wind-zoned county; and (2) the ordinance is stricter than state law.  Morris moved a manufactured home into the city without applying for a permit as required by ordinance.  The city objected and Morris sued.  Morris argued that Section 1201.256 that exempts certain mobile homes from state regulation also preempts any city ordinance on mobile homes in a wind-zoned county.  The court of appeals agreed, holding that state law and the city’s ordinance are in conflict and so the ordinance is preempted.  A petition for review was filed by the city on February 1, 2016. In support of that petition, TML and TCAA argue that Sections 1201.008 and 1201.256 of the Occupations Code are not in conflict, but instead provide for state and local regulation of manufactured housing in certain parts of the state.  Specifically that, when 1201.008 and 1201.256 of the Occupations Code are  read together, they mean that a person needs to ensure that his mobile home meets state law requirements regarding wind zones and also meet any stricter requirements enacted by a city under Section 1201.008. TML and TCAA filed their brief on February 25, 2016.

Vendor Disclosure Requirements: Proposed Amendment – 1 TAC § 46.3(d), implementing House Bill 1295 (Government Code Section 2252.908). The Texas Municipal League submitted comments to the Texas Ethics Commission indicating its support of the proposed amendment, which clarifies the terms “controlling interest” and “intermediary.”  In addition, TML argued that the Commission should consider futher amendments to the rules, including: (1) defining how one determines the “value” of a contract; (2) defining the term “contract” to clarify its scope; (3)  defining the term “officer” as used in the rules; (3) amending 1 TAC § 46.5(a)(4) to allow the use of some identification mechanism in lieu of a numbering system; (4) amending 1 TAC § 46.5(c) to clarify that a governmental entity is not deemed to have received a disclosure under Government Code § 2252.908(f) until all parties are bound to the contract; and (5) amending Form 1295, Box 6 (the affidavit) to provide as follows: “I swear, or affirm, under penalty of perjury, that to the best of my knowledge the above disclosure is true and correct.”  The comment was filed on February 24, 2016.

General Law Sex Offender Residency RestrictionsCity of Krum v. Rice, No. 02-15-00342-CV in the Second Court of Appeals at Fort Worth. In 2015, Texas Voices for Reason and Justice (TVRJ), a “statewide criminal-justice advocacy group,” asked by letter that 49 general law cities with sex offender residency restrictions repeal their ordinance or face a lawsuit.  This is one of 13 lawsuits filed so far against cities that refused to do so.   The substance of sex offender’s claim in this suit – that a general law city has no authority to enact such an ordinance – is largely based on a March 2007 opinion from the Texas attorney general’s office. The petition alleges that, because it is incorporated under the general laws, and no general law expressly delegates the authority to enact a sex offender residency restriction ordinance, the defendant city is not authorized to enact one. Of course, attorney general opinions are not binding on courts. Moreover, the three-sentence conclusion in GA-0526 should be treated as dicta because the purpose of the opinion wasn’t to opine on general law authority, and it provides essentially no analysis as to the question of general law authority to enact sex offender residency restrictions. The Texas Municipal League and the Texas City Attorneys Association argue that a general law city can enact a sex offender residency restriction because Sections 51.001 and 51.012 of the Local government Code provide the express privilege to enact an “ordinance, act, law, or regulation” necessary for public welfare and “good order.”  The letter brief was filed on February 23, 2016, and oral argument was held on March 2, 2016.

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