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_111317.pdf.

TCEQ Permits: RQ-0185-KP; Regarding local government recommendations and the Texas Commission on Environmental Quality (TCEQ) permitting process.  This attorney general opinion request asks the extent to which Section 382.112, Health and Safety Code, requires TCEQ to consider a recommendation from a city to deny a permit for a facility and whether the answer differs if the recommendation is based on an ordinance adopted in accordance with Section 382.113. The request also asks if the Texas Clean Air Act (Act) precludes TCEQ from considering a local government’s zoning, land use, and other ordinances in determining whether to issue a permit. The Texas Municipal League (TML) and Texas City Attorneys Association (TCAA) filed comments arguing that the TCEQ has a statutory duty under Section 382.112, Health and Safety Code, to give the utmost deference to a city’s recommendation in relation to a rule, determination, variance, or order that affects an area in the city’s jurisdiction, regardless of the statutory basis for the recommendation. TML and TCAA also argued that the Act as well as TCEQ’s own rules/forms authorize the TCEQ to consider local ordinances when issuing a permit.   The comments were filed on November 9, 2017.

ReferendumCity of Plano v. Carruth, No. 17-0405 in the Supreme Court of Texas.  In this case, a citizens group filed a referendum petition under the city’s charter to repeal the city’s comprehensive plan. The Texas Municipal League (TML), Texas City Attorneys Association (TCAA), Texas Chapter – American Planning Association (TxAPA), and International Municipal Lawyers Association (IMLA) argued in support of the city’s interlocutory appeal on its plea to the jurisdiction that the adoption of a comprehensive plan is not subject to referendum because a statutory adoption process must be followed. Amici filed their brief on August 16, 2016. Oral argument was held on November 8, 2016.

On February 23, 2017, the court issued a memorandum opinion concluding that the Plano city charter does not give the city secretary any discretion to determine whether the subject matter of a referendum petition has been withdrawn from the referendum power by general law or the charter. “We will not imply such discretion absent express language in the charter supporting its existence [and Carruth]…alleged facts supporting a claim for mandamus relief against the city secretary under the ultra vires exception to governmental immunity.”

In so holding, the court held that the city’s argument that comprehensive plans have been removed from the referendum power confuses the merits of whether mandamus should be issued with whether the trial court has subject matter jurisdiction to consider a petition for mandamus. “Whether the trial court should ultimately grant or deny the petition for mandamus is not the issue before us; the issue is whether the trial court has jurisdiction to consider the petition.” The cases cited by the city were decided on the merits of whether the writ of mandamus should issue, indicating the courts had subject matter jurisdiction to rule on the merits.

Based on those conclusions, the court agreed with the city that the claims against the city council were not ripe because the council had yet to decide how to act on a petition that hadn’t been submitted to it. “What the City Council will do when presented with a referendum petition is unknown and appellees merely speculate the council will refuse to act.” The city filed a petition for review with the Texas Supreme Court. TML, TCAA, the American Planning Association (APA), TxAPA, the Plano Chamber of Commerce, IMLA and a number of cities filed an amicus brief on November 7, 2017, urging the court to grant the petition.

ImmunityGarza v. Harrison, No. 17-0724 in the Supreme Court of Texas.  The issue in this case is whether a municipal police officer who detains and arrests a suspect outside of the jurisdictional boundaries of the officer’s municipal employer is entitled to immunity from common law tort liability pursuant to the Tort Claims Act. The Texas Municipal League and the Texas Municipal League Intergovernmental Risk Pool argue that the court of appeal’s holding that an officer is not entitled to immunity unless the officer’s employer has assigned him that task is contrary to the statute’s coverage of all acts by a city official within the official’s “general scope of employment.”  The legislature has conferred countywide jurisdiction on municipal police to enforce most criminal laws.  And since 1995, city police have exercised state-wide jurisdiction to detain suspects of most violations committed in the officer’s presence, which include the violations at issue in this case.  Thus, the officer is entitled to immunity.  The brief was filed on October 30, 2017.

Spousal BenefitsMayor Sylvester Turner and City of Houston v. Jack Pidgeon and Larry Hicks, No. 17-424 in the United States 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.  At the Texas Supreme court, 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), amici argued, 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, and oral argument was held on March 1, 2017.  On June 30, the Texas Supreme Court disagreed reversed and remanded, stating that “Pidgeon and the Mayor, like many other litigants throughout the country, must now assist the courts in fully exploring Obergefell’s reach and ramifications, and are entitled to the opportunity to do so.”

Mayor Turner and the City of Houston filed for a writ of certiorari with the United States Supreme Court and TML and IMLA once again filed a brief in their support.  The brief stated that Texas has a Defense of Marriage Act similar to those struck down in Obergefell. In this case, Respondents used Texas’ DOMA to challenge a mayor’s decision to expand the city’s provision of health insurance benefits to spouses of employees in same-sex marriages just as it has been providing those spousal benefits to employees in opposite-sex marriages. Despite the U.S. Supreme Court’s intervening opinion in Obergefell, the Texas Supreme Court inexplicably concluded that the issue had “not yet been fully developed or litigated,” stating that “the Texas and Houston DOMAs remain in place as they were before Obergefell and De Leon.”

Some cases raise questions that are tangential to the core issue of whether those in same-sex marriages are entitled to the same constellation of benefits as those in opposite-sex marriages. But this one does not.

Obergefell 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. Here, no constitutionally permissible limitation prohibits the City of Houston, or any other Texas city, from extending employment benefits to spouses of all legally married employees.

The Texas Supreme Court, instead of encouraging more litigation, should have recognized that the decision in Obergefell resolves the core question of whether Texas’s DOMA can be used to prohibit a city from providing equal benefits to spouses of employees in same-sex marriages. That court’s ruling leaves cities vulnerable to lawsuits from all sides and significantly hampers their ability to attract a healthy, talented, and diverse workforce.

The writ is pending.

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