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/AMICUS%20BRIEF%20UPDATE09162014.pdf.
Contractual Immunity: Lower Colorado River Authority v. City of Boerne, No. 14-0079 and City of Seguin v. Lower Colorado River Authority, No. 14-0158, both in the Texas Supreme Court. TML and TCAA filed an amicus brief in support of the cities of Boerne and Seguin. Both Boerne and Seguin notified LCRA that it had breached their wholesale power agreement by charging customers cheaper rates and not offering those rates to Boerne and Seguin. Instead of curing the breach, LCRA filed a lawsuit against the cities. Since LCRA did not cure the breach, Boerne and Seguin provided LCRA with written notice that their contracts were terminated. LCRA then amended its petition in each suit to add a breach-of-contract claim. Boerne and Seguin each filed a plea to the jurisdiction, asserting governmental immunity. The trial court in Kendall County granted Boerne’s Plea to the Jurisdiction, which the Fourth Court of Appeals affirmed. The trial court in Travis County, however, denied Seguin’s Plea to the Jurisdiction, which the Third Court of Appeals confirmed. The LCRA filed a petition for review in the Boerne case, and the City of Seguin filed a petition for review in the Seguin case.
The TML/TCAA brief focused the Texas Supreme Court’s attention on four key points: (1) public policy favors governmental immunity; (2) the Texas Legislature has provided a limited waiver of governmental immunity in the contractual setting; (3) the Texas Supreme Court needs to resolve a growing split among the intermediate appellate courts; and (4) the governmental/proprietary dichotomy is unworkable in the absence of legislative guidance. The brief was filed on September 9, 2014.
Gas Rate Case Reimbursement/Expenses: Gas Utilities Docket No. 41622, New rules regarding rate case expenses and discovery, 1.86 and 1.87 (see also 7.5530). The purpose of this rulemaking is to modify municipal participation in gas ratemaking proceedings. The Texas Municipal League filed comments, arguing that: (1) cities play a key role in utility ratemaking in Texas; (2) city participation is not a “problem” that needs to be fixed; and (3) the legislature has clearly spoken that city participation in gas ratemaking proceedings should continue. The comments were filed on August 25, 2014.