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_101518.pdf.

Home Rule Charter Amendments:  RQ-0237-KP, regarding frequency of home rule charter amendments. This request for an attorney general opinion asks about the language in Article XI, Section 5, of the Texas Constitution, which prohibits a home rule charter from being amended “oftener than two years.” TML and TCAA filed this comment in support of the briefing submitted by the City of Arlington. The purpose of Article XI, Section 5, is to avoid having repeated elections in close proximity to one other. Until 1975, cities were free to choose their own election dates. The current system mandates one of two dates for elections. That statutory mandate was passed more than 50 years after the home rule amendment, and it now leads to an absurd result:  the will of city voters is needlessly silenced until a future date. The city’s briefing distinguishes the prior attorney general opinions and court of appeals opinion, and its constitutional construction argument gives the voters of home rule cities their voice.  The comments were filed on September 18, 2018. 

Electric Utility Undergrounding: CenterPoint Houston Energy Houston Electric, LLC v. Public Utility Commission of Texas, No. D-1-GN-17-006780 in the 201st Judicial District of Travis County.  In this case, CenterPoint Houston (a utility provider) challenged the Public Utility Commission’s decision that a city ordinance requiring underground utilities was valid. The ordinance requires developers and retail customers to request and pay for underground installation of electric utilities.  TML and TCAA filed an amicus letter brief. Amici argued that CenterPoint Houston’s tariff does not conflict with the ordinance because the ordinance allows CenterPoint Houston to deny a request for underground installation based on various factors. Further, the developers and retail customers are the ones required to pay for the requested services and neither CenterPoint Houston nor its customers (other than the customers requesting the installation) are required to pay for the increased costs. Because of this, amici argued, the ordinance is valid. Amici filed the letter brief on September 17, 2018.

Employment LawHillman v. Nueces County, No. 17-0588 in the Texas Supreme Court.  In this case, plaintiff Hillman, a prosecutor, claimed he was wrongfully terminated because he turned over information about an alibi witness when his superiors instructed him not to do so. Hillman sued for wrongful termination under Sabine Pilot v. Hauck, 687 S.W.2d 733 (Tex. 1985) and now asks the Texas Supreme Court to create a waiver of sovereign immunity for his claims to pursue uncapped compensatory and punitive damages. The Texas Association of Counties joined TML and TCAA in filing the amicus brief urging the Court not to change the current state of the law by creating a judicial waiver of sovereign immunity.*

Amici acknowledged the importance of providing exculpatory evidence in criminal prosecutions, but urged the Court to decline to step in for the legislature and abrogate immunity for Sabine Pilot claims. (Sabine Pilot recognized a private cause of action to sue for a termination resulting from a worker’s refusal to follow an illegal order.) There is no current waiver of sovereign immunity for a claim under Sabine Pilot under the Texas Tort Claims Act because it is considered an intentional tort.  Amici reminded the Court of the long-standing principle of sovereign immunity, which should only be waived by the legislature. Amici argued that states that have judicially-waived sovereign immunity have paid large sums out of public coffers and many have had to backtrack on the waiver. Amici also argued that the Michael Morton Act is evidence that the Legislature has taken seriously the withholding of exculpatory evidence, but that Act is not a basis for a waiver of sovereign immunity. The brief was filed on September 7, 2018.

*The Texas Municipal League Intergovernmental Risk Pool, which strives to protect cities’ immunity and to control litigation costs, partnered with TML, TCAA, and the Texas Association of Counties for the preparation of this brief.

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