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

Ballot Proposition Standard:  Dacus v. Parker, No. 13-0047, in the Supreme Court of Texas.  This case involves the appropriate standard by which a charter amendment proposition should be measured.  The brief urges the court to deny the petition for review.  TML and TCAA argue that home rule cities, like the City of Houston (City), look first to their charter, not the common law, for the appropriate ballot proposition standard.  The City’s Charter provides that measures related to citizen-initiated legislation shall set forth their nature sufficiently to identify them. Because the intermediate court of appeals properly applied that standard to determine the proposition at issue was sufficient, TML and TCAA argue that the petition for review should be denied. And for those cities whose charter is silent as to the ballot standard, TML and TCAA argue that petitioners propose a subjective and flawed standard that will result in costly litigation.  The brief was filed on October 10, 2014.

Recreational Use Statute:  University of Texas-Arlington v. Williams, No. 13-0338 in the Supreme Court of Texas.  The plaintiffs sued the university after Williams was injured at a university sport facility while watching a soccer game.  The university filed a plea to the jurisdiction on the issue of immunity based on the recreational use statute.  The recreational use statute protects landowners, including governmental entities, from some liability from injuries occurring on their property during recreational activities by lowering a landowner’s duty of care when it allows individuals to use their land.  The plaintiffs argued that the recreational use statute did not apply in this case because the individual was a “spectator” when she was injured, not a participant in the sports or recreational activity.  The trial court denied the university’s plea to the jurisdiction and the court of appeals affirmed.  TML and TCAA filed an amicus letter brief in the Supreme Court of Texas supporting the university and arguing that the recreational use statute should apply to spectators for policy reasons.  The brief was filed on October 7, 2014.

Employment Law:  Thompson v. City of Waco, No. 13-50718 in the Fifth Circuit.  TML and TCAA filed this amicus brief in support of the city’s motion for rehearing en banc.  Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to fail to hire or to discharge an individual or otherwise discriminate against such individual “with respect to his [or her] compensation, terms, conditions, or privileges of employment” because of a protected characteristic, including race.  To establish a claim of discrimination under Title VII, an individual must first show that he was subject to an “adverse employment action.”   Amici argue that the Fifth Circuit recognizes only “ultimate” employment decisions as actionable adverse employment actions for Title VII discrimination claims, and that changes in duties don’t rise to that level. Accordingly, consideration by the full court is necessary to clarify the standard that applies to ultimate employment decisions.  The brief was filed September 23, 2014.

Civil Penalties:  Forte v. Wal-Mart Stores, Inc., No. 12-40854 in the Fifth Circuit.  TML and TCAA joined in this brief with Harris County, Hunt County, and the City of Houston.  The case involves a dispute between Wal-Mart and several optometrists regarding violations under the Texas Optometry Act (Act).  The Act authorizes both private litigants and the attorney general to recover civil penalties.  The Fifth Circuit held that Wal-Mart was liable under the Act, but eliminated the plaintiffs’ civil penalty award.  The Fifth Circuit ruled that Chapter 41 of the Texas Civil Practices and Remedies Code (a tort reform statute) applies to civil penalties, meaning that the penalties were punitive damages and could not be recovered unless actual damages were recovered.

Because the court’s opinion does not distinguish between private litigants and governmental entities, the opinion could impact a city’s ability to recover civil penalties. This brief explains why the court should modify the panel opinion to make clear that the  limitations  on  exemplary  damages  found  in  Chapter 41 do  not  apply  to  civil-penalty cases brought by the government, and the  government  may  recover  civil  penalties even if it is not awarded actual damages. The motion for leave to file the brief was filed on September 18, 2014, and granted on October 1, 2014.

Deadly Force:  Luna v. Mullenix, No. 13-10899 in the Fifth Circuit. This excessive force case began when a peace officer shot at a vehicle containing a fleeing suspect who had threatened to shoot any peace officer he saw.  After the officer shot at the vehicle, the vehicle crashed, the suspect died and was found not to have a weapon with him. The trial court held that there was insufficient evidence for summary judgment on the issue of qualified immunity for the officer.  A panel of the Fifth Circuit Court of Appeals held that the officer was not protected by qualified immunity as a matter of law because the suspect’s threat to shoot any peace officer he saw was not sufficient to show he posed an immediate risk of harm to others. The panel held that the motion for summary judgment filed by the officer was correctly denied by the trial court.  TML, TCAA, and the Texas Association of Counties filed a brief asking that the Fifth Circuit accept the case en banc and reverse the decision of the panel because the panel’s decision increased the showing an officer would have to make before he or she could use deadly force.  The brief argued that the panel’s decision changes the Supreme Court’s objectively reasonable analysis, as well as the requirements for “clearly established law,” making the official immunity defense unusable in most cases.  The brief was filed on September 18, 2014.

F.C.C. Preemption:  WCB Docket No. 14-115, Wilson, North Carolina; WCB Docket No. 14-116, Electric Power Board of Chattanooga, Tennessee, Petitions Pursuant to Section 706 of the Telecommunications Act of 1996 for Removal of State Barriers to Broadband Investment and Competition at the Federal Communications Commission.  The Texas Municipal League, the Texas Coalition of Cities for Utility Issues, and the Coalition of Texas Cities filed reply comments at the Federal Communications Commission (FCC) to correct erroneous references to Texas law in the Advanced Communications Law and Policy Institute (ACLP) at New York Law School comments.  ACLP erroneously mischaracterized Texas law as having an “outright” ban prohibiting Texas cities from providing Internet broadband access. Texas has no such restrictions, and that fact is discussed in detail in the comments. While Texas cities are prohibited from providing directly or indirectly a “telecommunications service” to the public, Texas cities are not prohibited from providing Internet connectivity, as that is a federally classified as an “information service,” and not a “telecommunications service.” The reply comments seek to correct the FCC record to minimize any challenge to Texas cities as a result of a company relying on ACLP’s mistaken characterization as a basis for such a challenge. The comments were filed on September 14, 2014.