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_031317.pdf.

F.C.C. Preemption: WC Docket No. 16-421, In the Matter of Streamlining Wireless infrastructure deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies, Mobilitie, LLC Petition for Declaratory Ruling at the Federal Communications Commission.  This action relates to a petition alleging that municipal right-of-way management regulations and rental fees are an impediment to broadband deployment.  The Texas Municipal League filed reply comments at the Federal Communications Commission (FCC) to explain the use of municipal rights-of-way in Texas.  The comments also include specific Texas examples of clear, non-discriminatory legal and administrative processes of Texas cities.  The comments were filed on March 8, 2017.

General Law Sex Offender Residency Restrictions: City of Krum v. Taylor 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 the 49 general law cities with sex offender residency restriction 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 brief was filed on February 24, 2016, and oral argument was held on March 1, 2016. On December 15, the Fort Worth Court of Appeals decided that a registered sex offender’s lawsuit against the City of Krum’s residency restrictions can move forward.  In City of Krum v. Rice, the court issued a one-page order stating that the trial court properly denied the general law city’s claim that the court is without jurisdiction to hear the case.  (A dissenting opinion argued that the case is moot because the sex offender in question is prohibited by his probation conditions from residing within 1,000 feet of places where children commonly gather.)  On January 30, 2017, the city filed a petition for review with the Texas Supreme Court.  TML and TCAA once again filed amicus support, arguing that Rice’s claim for relief is moot because: (1) he does nothing more than make a vague assertion that he wants to live somewhere within the distance prohibited by the ordinance; and (2) a civil court is not the proper forum to attack a criminal ordinance.  The letter was filed on March 2, 2017.

Utility Relocation Costs: City of Jersey Village v. Texas Transportation Commission, No. 15-0874 in the Texas Supreme Court.  TML and TCAA filed an amicus brief in support of the City of Jersey Village’s petition for review. The City of Jersey Village was required to move its utility lines because of a state highway expansion project. The state is required to reimburse the city for the entire amount of the relocation cost according to Section 203.092 of the Texas Transportation Code. The state declined to pay the replacement easements needed to move the city’s lines. The city filed suit in trial court where the court ruled the city’s replacement easement cost is part of the entire amount for the relocation of its utility lines. The state appealed and the Fourteenth Court of Appeals reversed the trial court stating that the city did have a compensable property interest in the land because of the public utility easements, but the cost of replacement easements are not properly attributable to the relocation and therefore not reimbursable.  TML and TCAA argued that replacement easements are attributable to the relocation of utility lines resulting from a state highway expansion project, and to deny the reimbursement of those costs will set a dangerous precedent and place a burden on cities. The brief was filed on February 28, 2017.

Governmental Immunity: Port of Houston Authority v. Zachry Construction Corporation, No. 17-0066 in the Texas Supreme Court. The Port of Houston Authority filed a petition for review asking the Court to clarify two issues related to governmental immunity. The first involves a contractual provision requiring notice to the Port of Houston if Zachry believes the Port interpreted the contract in a way that would change or breach the contract. The second involves governmental immunity in pass-through claims. TML and TCAA filed an amicus letter in support of the Port of Houston Authority arguing that: (1) Section 271.0154 of the Local Government Code applies and allows this type of notice provision in governmental contracts; and (2) governmental immunity applies to a pass-through claim on behalf of a subcontractor that does not have a contract with a governmental entity. The letter was filed on February 27, 2017.

Ultra Vires WaiverAndy Meyers v. JDC Firethorne, Ltd., No. 17-0105 in the Texas Supreme Court.  The issue in this case is who is the proper party against whom an ultra vires claim should be made.  TML, along with the Texas Association of Counties, and the Conference of Urban Counties, argued that the ultra vires doctrine must be narrowly applied as an exception to governmental immunity. The plaintiff in this case asserts that he was injured by the failure of a county engineer and county commissioners court to process and approve his plat applications. He acknowledges that Meyers, an individual county commissioner, lacks the authority to provide a remedy, but alleges that Meyers exerted influence over the county engineer by “instructing” him to “hold” the plats indefinitely. It is undisputed that the applicable statute and local regulations only assign nondiscretionary duties to the county commissioners court, acting as a body, and to the county engineer. Simply put, Meyers in his individual capacity has no authority on which plaintiff’s claims are based. Consequently, the plaintiff cannot obtain injunctive and mandamus relief from the county commissioner to remedy its alleged injuries. The brief was filed on February 21, 2017.

Spousal BenefitsJack Pidgeon & Larry Hicks v. Mayor Sylvester Turner & City of Houston, No. 15-0688 in the Texas Supreme Court.  The issue in this case is whether the City of Houston can offer spousal benefits to a spouse in a same-sex marriage.  TML and the International Municipal Lawyer’s Association argued that the state’s attempt to limit the autonomy and authority of cities to make decisions about the health and welfare of their citizenry should be met with skepticism when such limitations are declared unconstitutional by the U.S. Supreme Court. Obergefell v. Hodges, 135 S.Ct. 2584 (2015) instructs that a same-sex marriage is on equal legal footing with a traditional marriage. There is no permissible basis for distinguishing the two—they are both legal marriages, on the same terms and conditions, entitled to equal dignity and respect under the law. No constitutionally permissible limitation prevents the City of Houston, or any other Texas city, from extending employment benefits to spouses of all married employees.  The brief was filed on February 16, 2017.

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