TML/TCAA 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

Regulatory Takings:  City of McAllen v. Ramirez, No. 13-09-00067-CV, in the Thirteenth Court of Appeals.  This is a regulatory takings case based on a city’s refusal to renew a conditional use permit for the operation of a bar.  Among other reasons, the city denied the renewal because of repeated noise complaints, which violated the terms of the original permit.  The Texas Municipal League, the Texas City Attorneys Association, and the cities of Corpus Christi and Brownsville submitted an amicus letter in support of the city’s motion for rehearing en banc.  The essential reasoning behind amici’s policy arguments is that “[t]he takings clause . . . does not charge the government with guaranteeing the profitability of every piece of land subject to its authority. Purchasing and developing real estate carries with it certain financial risks, and it is not the government’s duty to underwrite this risk as an extension of obligations under the takings clause.”  From both a policy and a legal perspective, the Court’s Penn Central analysis is flawed.  Amici addressed three of the most important flaws in the opinion that, from a policy and legal perspective, would negatively affect all cities:  (1) the conditional use permit as a basis for a Penn Central taking; (2) the fact that money spent in furtherance of a conditional permit does not meet the investment-backed expectations component in Penn Central; and (3) the impermissible recovery of damages related to property not actually taken.  The brief was filed on September 10, 2013.

State Agency Fiscal Notes: Railroad Commission Gas Utilities Docket No. 10288, Pipeline Safety Fee Increase.  The fiscal note in this docket determined that a Railroad Commission (RRC) fee increase may cause a de minimis fiscal impact on cities, but also states that cities “are authorized to recover their costs by imposing an annual surcharge upon their customers.”

Comments by the Texas Municipal League pointed out that the disturbing fiscal note leads to a false conclusion:  no government action will ever impose a negative fiscal impact on any other unit of government.  Under the fiscal note’s reasoning, when the federal government places an unfunded mandate on the RRC, there is no fiscal note because the RRC would simply increase fees, as it is now doing.  If Congress places an unfunded mandate on the Texas Legislature, there would be no fiscal note because the legislature would simply raise taxes or fees paid by Texans. The League submitted that the purpose of a fiscal note is to quantify the amount of revenue that an affected unit of government (cities) would be forced to generate as a result of the proposed action.