On April 22, 2010 a
LETTER/EMAIL/CORR
was filed
involving a dispute between
City Of Houston Texas,
and
Greg Abbott Attorney General Of Texas,
for DECLARATORY JUDGMENT (GEN LIT )
in the District Court of Travis County.
Preview
6/22/2010
345TH DISTRICT COURT
STEPHEN YELENOSKY TRAVIS COUNTY COURTHOUSE ALBERT ALVAREZ
Judge P.O. BOX 1748 Official Reporter
(612) 854-9374 AUSTIN, TEXAS 78767 (612) 854-9373
DANA LEWIS. DANIKAE DOETSCH
Staff Attorney Court Clerk
(512) 854-9892 (612) 854-9457
ANGELA RILEY
Court Operations Officer
(512) 854-9712
Mr. David P. Whittlesey
Andrews & Kurth LLP
111 Congress Avenue, Suite 1700
Austin, Texas 78701
Via Fax (512) 320-9292
Mr. J. Wiley George
Mr. Kelly Sandil!
Andrews & Kurth LLP
600Travis, Suite 4200
Houston, Texas 77002
Via Fax (713) 220-4283
June 21, 2010
Filed in The District ¢
of Fravig County, Tent
Mr. Joshua R. Godbey ‘i 4
Assistant Attorney General JUN 2 72010
Financial Litigation Division4 Pp. N.
P.O. Box 12548 Amalia Rodriguez-Mendoza, Clerk
Austin, Texas 78711
Via Fax (512) 477-2348
Mr. Andy Taylor
Andy Taylor & Associates, P.C.
405 Main Street, Suite 200
Houston, Texas 77002
Via Fax (713) 222-1855
Re: D-1-GN-10-001296; In The Matter Of The City of Houston, Texas; in the 261° District
Court of Travis County, Texas
Dear Counsel:
The City of Houston asks for a declaration of the legality and validity of the sewer and
water rate increase imposed by recent city ordinance. Since the rate increase relates to the
issuance of bonds, this court has jurisdiction conferred by the legislature, and venue in Travis
County is proper as specified by the legislature. See Texas Government Code Chapter 1205.
Intervenors Hotze and Bettencourt challenge the factual support for the ordinance and
claim it violates Section 20 of the City Charter.
This court is authorized to review the factual support for the ordinance, however, the
Texas Supreme Court has held:
A city ordinance is presumed to be valid ... the courts have no
authority to interfere unless the ordinance is unreasonable andD-1-GN-10-001296
Page 2 of 2
arbitrary - a clear abuse of municipal discretion .... An
‘extraordinary burden’ rests on one attacking the ordinance to show
that no conclusive or even controversial issuable facts or
conditions exist which would authorize the governing board of the
municipality to exercise the discretion confided to it.
Hunt v. City of San Antonio, 462 SW2d 536 (1971). This requires more than showing that an
expert has criticisms and questions regarding the financial support for the increase. Intervenors
show no more than that.
In determining whether the rate increase violates Section 20 of the City Charter, this court
is required to follow the plain, unambigous language of the ordinance. See Sorokolit v. Rhodes,
889 SW2d 239 (Tex. 1994). Section 20 states that the rate increase cap does not apply to “rate
increases required by bond covenants ...2' The plain language places no qualifier on bond
covenants, and, therefore, means any and all bond covenants relating to any and all bonds.
Intervenors argue that this court should disregard the plain language and limit the exception for
bond covenants to bonds that pre-existed Section 20. They argue this is necessary to keep
Section 20 from being meaningless. However, even if the court were to adopt Intervenors'
interpretation, the ordinance would not violate Section 20 because the testimony established that
the rate increase is necessary to satisfy the bond covenants on bonds that pre-existed Section 20.
Furthermore, the evidence is that the rate increase is necessary to pay projected costs of service,
as required by state law. Section 1502.057 of the Government Code. The legislature's directive.
of course, supersedes a municipal charter.
I will grant the declaration of legality and vatidity. Please confer over the form of the
declaration and determine if you can reach agreement. If you cannot reach agreement as to form,
counsel may notify the court in writing by noon tomorrow of their positions as to the form.
Sincerely,
SLL}
on Yeleylosky
Judge, 345"
SY/ar
Original: Travis County District Clerk
' Or “rates established by contract,” which is not at issue in this case. See City of Houston Charter Section 20.
Document Filed Date
June 21, 2010
Case Filing Date
April 22, 2010
Category
DECLARATORY JUDGMENT (GEN LIT )
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6/22/2010 345TH DISTRICT COURT STEPHEN YELENOSKY TRAVIS COUNTY COURTHOUSE ALBERT ALVAREZ Judge P.O. BOX 1748 Official Reporter (612) 854-9374 AUSTIN, TEXAS 78767 (612) 854-9373 DANA LEWIS. DANIKAE DOETSCH Staff Attorney Court Clerk (512) 854-9892 (612) 854-9457 ANGELA RILEY Court Operations Officer (512) 854-9712 Mr. David P. Whittlesey Andrews & Kurth LLP 111 Congress Avenue, Suite 1700 Austin, Texas 78701 Via Fax (512) 320-9292 Mr. J. Wiley George Mr. Kelly Sandil! Andrews & Kurth LLP 600Travis, Suite 4200 Houston, Texas 77002 Via Fax (713) 220-4283 June 21, 2010 Filed in The District ¢ of Fravig County, Tent Mr. Joshua R. Godbey ‘i 4 Assistant Attorney General JUN 2 72010 Financial Litigation Division4 Pp. N. P.O. Box 12548 Amalia Rodriguez-Mendoza, Clerk Austin, Texas 78711 Via Fax (512) 477-2348 Mr. Andy Taylor Andy Taylor & Associates, P.C. 405 Main Street, Suite 200 Houston, Texas 77002 Via Fax (713) 222-1855 Re: D-1-GN-10-001296; In The Matter Of The City of Houston, Texas; in the 261° District Court of Travis County, Texas Dear Counsel: The City of Houston asks for a declaration of the legality and validity of the sewer and water rate increase imposed by recent city ordinance. Since the rate increase relates to the issuance of bonds, this court has jurisdiction conferred by the legislature, and venue in Travis County is proper as specified by the legislature. See Texas Government Code Chapter 1205. Intervenors Hotze and Bettencourt challenge the factual support for the ordinance and claim it violates Section 20 of the City Charter. This court is authorized to review the factual support for the ordinance, however, the Texas Supreme Court has held: A city ordinance is presumed to be valid ... the courts have no authority to interfere unless the ordinance is unreasonable andD-1-GN-10-001296 Page 2 of 2 arbitrary - a clear abuse of municipal discretion .... An ‘extraordinary burden’ rests on one attacking the ordinance to show that no conclusive or even controversial issuable facts or conditions exist which would authorize the governing board of the municipality to exercise the discretion confided to it. Hunt v. City of San Antonio, 462 SW2d 536 (1971). This requires more than showing that an expert has criticisms and questions regarding the financial support for the increase. Intervenors show no more than that. In determining whether the rate increase violates Section 20 of the City Charter, this court is required to follow the plain, unambigous language of the ordinance. See Sorokolit v. Rhodes, 889 SW2d 239 (Tex. 1994). Section 20 states that the rate increase cap does not apply to “rate increases required by bond covenants ...2' The plain language places no qualifier on bond covenants, and, therefore, means any and all bond covenants relating to any and all bonds. Intervenors argue that this court should disregard the plain language and limit the exception for bond covenants to bonds that pre-existed Section 20. They argue this is necessary to keep Section 20 from being meaningless. However, even if the court were to adopt Intervenors' interpretation, the ordinance would not violate Section 20 because the testimony established that the rate increase is necessary to satisfy the bond covenants on bonds that pre-existed Section 20. Furthermore, the evidence is that the rate increase is necessary to pay projected costs of service, as required by state law. Section 1502.057 of the Government Code. The legislature's directive. of course, supersedes a municipal charter. I will grant the declaration of legality and vatidity. Please confer over the form of the declaration and determine if you can reach agreement. If you cannot reach agreement as to form, counsel may notify the court in writing by noon tomorrow of their positions as to the form. Sincerely, SLL} on Yeleylosky Judge, 345" SY/ar Original: Travis County District Clerk ' Or “rates established by contract,” which is not at issue in this case. See City of Houston Charter Section 20.