recent LAF decisionsOpen Meetings Act (OMA)At a properly posted meeting of the Galveston City Council, the Council discussed a possible lease agreement between the City, the Port of Galveston, and BP Energy Company. The City’s meeting notice specified the parties to the proposed agreement and lease, the subject of the agreement, and the location and size of the property at issue. At trial, a citizen argued that the notice was insufficient because it failed to state the purpose and term of the lease. The trial court agreed and held that this notice was not sufficient. On February 14, 2008, the court of appeals held that the City’s notice complied with the Open Meetings Act as it was specific enough to notify a reader of the subject of the City’s meeting. City of Galveston v. Saint-Paul, No. 01-06-00580-CV (First Court of Appeals, Houston). LAF’s Attorney: Judge Harvey Brown, Wright, Brown & Close LLP, Houston.

iMMunityMission CISD terminated the employment of three at-will employees based onperformance failures. Each of the three employees filed suit against both thesuperintendent and the school district, alleging common-law claims (intentional infliction of emotional distress, defamation, and fraud) and discrimination in violation of the Texas Commission on Human Rights Act (TCHRA). The district argued that the suits against the district were barred by the election of remedies provision in Texas Civil Practice and Remedies Code section 101.106(b) because lawsuits were filed against both the district and the superintendent. The district court denied the district’s argument, and the Corpus Christi Court of Appeals affirmed that decision. On March 28, 2008, the Texas Supreme Court reversed, holding that the election of remedies provision barred the common-law claims against Mission CISD; but did not bar the TCHRA discrimination claims because there is a specific appeal process in that law. The case was remanded to the trial court on those claims. Garcia v. Mission CISD, No. 05-0734 (Texas Supreme Court). LAF’s Attorney: Clay Grover, Feldman & Rogers, L.L.P., Houston.

FAlse clAiMs ActWest ISD (along with several other districts) was sued under the False Claims Act concerning the Social Security eligibility of certain public school employees. These districts hired numerous one-day full-time workers, and the districts argue that the employees performed bona fide work for which the districts had the authority and obligation to provide Social Security coverage and to report and pay Social Security wages. The lawsuits allege that the districts unlawfully allowed these employees to take advantage of an exemption in the Social Security Act. The district court and

about LAFThe mission of the Legal Assistance Fund (LAF) is to favorably impact the outcome of legal issues that significantly affect public education. LAF is governed by the Texas Association of School Boards, the Texas Association of School Administrators, and the Texas Council of School Attorneys.

For more information, visit legal.tasb.org/laf.

contact us

The LAF Docket is produced for LAF by TASB Legal Services. Address all correspondence to Allyson Collins, editor, The LAF Docket, P.O. Box 400, Austin, Texas, 78767-0400, or e-mail her at legal@tasb.org.

A NEWSLETTER OF THE TEXAS ASSOCIATION OF SCHOOL BOARDS LEGAL ASSISTANCE FUND ■ SpRING 2008 (As of May 2008)

TheLAF Docket

LegalServices

LegalServices

the Fifth Circuit determined that there was no proof that the program was a fraud on the government and that the suit against the district had no merit. United States ex rel. v. West Indep. Sch. Dist., No. 07-50732 (Fifth Circuit). LAF’s Attorney: S. Anthony Safi, Mounce, Green, Myers, Safi, Paxson & Galatzan, P.C., El Paso.

BOnd ApprOvAlOn May 12, 2007, Waller ISD voters approved the sale of school bonds for numerous projects. Suit was filed against the district by community members, alleging that the district violated the Open Meetings Act, scheduled the election for a discriminatory date, and did not receive preclearance of the election from the U.S. Department of Justice. Both the trial court and the Houston Court of Appeals found the bonds to be valid and authorized by Texas law. However, the opponents of the bond attempted to file several appeals with the Texas Supreme Court on issues over which the court had no jurisdiction. Waller ISD requested that the attorney general approve the bonds, but the attorney general refused to do so, based on the fact that the bonds were in litigation. Waller ISD, supported by LAF, filed a writ of mandamus to the Texas Supreme Court, asking the court to compel the attorney general to approve the public securities. Although the Court denied the district’s motion, the pending litigation against the district was dismissed, and the district was able to sell the bonds. In re Waller Indep. Sch. Dist., No. 08-0079 (Texas Supreme Court). LAF’s Attorney: David Thompson, Bracewell & Giuliani, LLP, Houston.

new LAF cases

QuAliFied iMMunityFactually, this case involves a question of when police officers may enter a home without a search warrant. However, in accepting the case for review, the U.S. Supreme Court made the unusual decision to ask the parties whether it should overrule its recent decision in Saucier v. Katz, in which the Court defined a two-part process for evaluating claims of qualified immunity in federal cases: (1) determine whether the plaintiff has actually articulated a violation of the Constitution, and (2) if the plaintiff has alleged a constitutional violation, then the Court must ask whether the right was clearly established at the time of the official’s conduct. Asking the parties to provide briefs on this issue may signal that the Court is considering altering its qualified immunity analysis. Pearson v. Callahan, No. 07-751 (U.S. Supreme Court). LAF’s Attorney: Ray Viada, Abrams, Viada & Strayer, The Woodlands.

delinQuent tAxesRoyal ISD filed suit against a citizen taxpayer for payment of delinquent taxes. The county district court entered judgment in favor of Royal ISD, and, after waiting the required amount of time, the property at issue was sold and the excess funds were released to Royal ISD. Later, a lienholder attempted to establish a claim to the excess funds, as required by Texas Tax Code Chapter 34, and the court ordered that the county clerk release the excess funds being held by the court. However, the funds had already been sent to the district. After the court ordered the county clerk to re-cover the excess funds from Royal ISD, the district and LAF argued to the Court of

TheLAF Docket SpRING 2008 TheLAF Docket SpRING 2008

in other words…WhAt is A Petition For Writ oF CertiorAri? the highest FederAl cOurt

in the united stAtes is the

supreMe cOurt. sOMeOne

whO is dissAtisFied with the

ruling OF A FederAl cOurt

OF AppeAls Or A stAte supreMe

cOurt cAn reQuest the u.s.

supreMe cOurt tO review the

decisiOn. tO AppeAl A cAse

tO the u.s. supreMe cOurt,

A persOn wOuld File A

dOcuMent cAlled A petitiOn

FOr writ OF certiOrAri

(inFOrMAlly cAlled A cert

petitiOn) with the cOurt. iF

the cOurt Accepts the cAse, it

grAnts A writ OF certiOrAri.

iF the cOurt reFuses the cAse,

the decisiOn is cert denied.

the u.s. supreMe cOurt receives

thOusAnds OF cert petitiOns

eAch yeAr, And ApprOxiMAtely

100 petitiOns Are grAnted.

Appeals that the lienholder had not established an entitlement to the proceeds from the sale. Royal Indep. Sch. Dist. v. Rags-dale, No. 14-07-00181-CV (Fourteenth Court of Appeals—Houston). LAF’s Attorney: Duane Force, Linebarger Goggan Blair & Sampson, LLP, Austin.

cOMMissiOner’s JurisdictiOnUniversal Academy was audited by the Texas Education Agency (TEA) in 2004. The audit report alleged a number of fiscal irregularities, and Universal Academy contested the findings. TEA held an informal review conference and found that Universal Academy owed the state nearly $750,000. Universal Academy filed a Petition for Review and Hearing under Texas Education Code section 7.057(a), which grants jurisdiction to the commissioner of education over allegations that a person is aggrieved by the school laws of this state. TEA referred the petition to the State Office of Administrative Hearings (SOAH) as a contested case under Government Code, Chapter 2001. No hearing on the merits was held. Instead, TEA/SOAH dismissed the petition based on the grounds that Texas Education Code section 7.057(a) did not grant jurisdiction to the com-missioner of education to review TEA’s own decisions (as agency decisions, rather than statute), nor a right to Universal Academy for a contested case hearing. LTTS Charter School, Inc. d/b/a Universal Academy v. Texas Education Agency, No. D-1-6N- 08-000644 (Travis County District Court). LAF’s Attorney: William Bednar, Law Offices of William C. Bednar, Austin.

texAs ecOnOMic develOpMent ActIn this request for an attorney general’s opinion, the comptroller of public accounts has asked for clarification on definitions in the Act. Since the Texas Tax Code prohibits school districts from entering into tax abatements, the Act was passed to give school districts the ability to provide property tax relief for state and local economic development purposes. This tax relief is in the form of a limit on the appraised property value of the applicant’s qualified property and payment of tax credits. With RQ-0684-GA, the comptroller has asked the attorney general whether an owner of a leasehold interest in real property is an owner of land

as required under Texas Tax Code section 313.021(2)(A)(iv), as that term relates to qualified property. Attorney General Opinion Request No. RQ-0684-GA (Texas Attorney General). LAF’s Attorney: Fred Stormer, Underwood Law Firm, Amarillo.

pending LAF cases

puBlic inFOrMAtiOn Act (piA)Is the lawyer-client privilege a “compelling reason” to withhold public information under the Public Information Act despite a governmental body’s failure to comply with the deadlines for requesting an attorney general decision about the information? City of Dallas v. Abbott, No. 07-0931 (Texas Supreme Court). LAF’s Attorney: Clay Grover, Feldman & Rogers, LLP, Houston.

Which parts of an attorney’s bill are protected by the attorney- client privilege, making them not subject to disclosure under the PIA? Humble Indep. Sch. Dist. v. Abbott, No. D-1-GV-07- 000097 (Travis County District Court). LAF’s Attorney: Ellen Spalding, Feldman & Rogers, LLP, Houston.

eMplOyMent issuesAre internal, local policies considered “laws” within the meaning of the Texas Whistleblower Act? City of Waco v. Lopez, No. 06-0089 (Texas Supreme Court). LAF’s Attorney: Ray Viada, Viada & Strayer, The Woodlands.

Does a teacher on a 10-month employment contract have a right to additional compensation for attending a graduation ceremony that was not specifically listed on the district’s 187- day work schedule? Kelley v. North East ISD, No. D-1-GN- 06-001375 (Travis County District Court). LAF’s Attorney: Cheryl Mehl, Schwartz & Eichelbaum, P.C., Austin. *Kelley appealed the commissioner’s decision in both Travis and Bexar counties, asserting breach of contract claims. The Travis County case was abated pending a decision from the Bexar County court. The district argued that Travis County district court had exclusive jurisdiction over appeals from the commissioner level, and the attorney general’s office, representing the commissioner of education, argued that common law breach of contract claims can be brought anywhere in the state. The Bexar County district court denied the district’s jurisdictional challenge and granted Kelley’s motion for summary judgment on his breach of contract claim (even though the commissioner of education had decided that Kelley’s claims were outside of his employment contract). Kelley v. North East Indep. Sch. Dist., No. 312677 (Bexar County District Court).

» continued on page 4

LegalServices

To what extent can a school district impose discipline and/or pursue termination of a teacher who the district determines uses excessive force in restraining a student? Presidio Indep. Sch. Dist. v. Papa, No. D-1-GV-06-001362 (Travis County District Court, 98th Judicial Dist.). LAF’s Attorney: Catherine Fryer, Bickerstaff Heath, Austin. *The commissioner of education attempted to assert that Travis County’s jurisdiction over this appeal was inappropriate because the district had not obtained the commissioner’s agreement to file suit in Travis County (see Texas Education Code section 21.307). However, the Austin Court of Appeals rejected the commissioner’s argument and remanded the case back to the Travis County District Court. Scott v. Presidio Indep. Sch. Dist., No. 03-07-00319-CV (Austin Court of Appeals). iMMunityIs the denial of qualified immunity for a school district employee appropriate when it is disputed whether a constitutional right is clearly established? Smith v. Barrow, No. 07-1089 (U.S. Supreme Court). LAF’s Attorney: Lisa Brown, Bracewell & Giuliani, LLP, Houston. *On May 19, 2008, the Court denied the petition for certiorari.

district OperAtiOnsAre Plano ISD’s former and current distribution-of-literature policies facially unconstitutional? Morgan v. Plano ISD, No. 4:04-CV-447 (Eastern District of Texas). LAF’s Attorney: Christopher Gilbert, Bracewell & Giuliani, LLP, Houston.

pending LAF cases continuedLAF Board of trustees Renard L. ThomasTASB President, Angleton ISD

Robert R. SewardTASB President-Elect, Mesquite ISD

Sarah WinklerTASB Vice-President, Alief ISD

Thomas RandleTASA President, Lamar CISD

Rick HowardTASA President-Elect Comanche ISD

Tom MyersChair, Texas Council of School Attorneys

Dorcas GreenVice-Chair, Texas Council of School Attorneys

Texas Association of School Boards P.O. Box 400 Austin, Texas 78767-0400

Address Service Requested

LegalServices