Appeals court clears way for Joe Pickett to sue city over fee

The Texas Eighth Court of Appeals issued an opinion on Dec. 28 that Joe Pickett, a former state representative and City Council member, is eligible to sue the city.

Pickett alleges that the city is using environmental franchise fees on water bills as a “slush fund” and that the city is not properly disclosing the use of those fees.

“Most people are like me, and their utility bills can fluctuate every month. The city can add things and people won’t notice it,” Pickett said in a phone interview. “It’s $30 million to use however they want, which is illegal.”

The city had filed a plea challenging Pickett’s standing to bring a lawsuit and alleging that Pickett had not established a “valid waiver of governmental immunity.” The city also argued that Pickett’s lawsuit could not proceed because he did not provide a particularized injury claim.

The Eighth Court of Appeals sided with Pickett, saying he can move forward with his lawsuit.

In a brief statement, city spokesperson Laura Cruz-Acosta said staff is evaluating the court’s decision and “they’re probably going to bring it back to Council to discuss.”

In his lawsuit, Pickett alleges he received notice of a 50% increase in the environmental franchise fee for residential customers. He said the insert in his water bill did not provide adequate information about how the fee would be used or how it was calculated.

Franchise fees are typically assessed on private utilities as compensation for wear and tear to city streets and as payment for the right to use them.

But Pickett, the Eighth Court of Appeals states, “contended the Ordinance and state law had been improperly construed ‘to allow the City to obtain funds for street maintenance and fire and police department equipment through what is supposed to be a fee for solid waste disposal services.”

Pickett cites the city’s fiscal year 2020 budget resolution in his lawsuit, saying it allocates $6.6 million from the fee for residential street maintenance, $2.7 million for the purchase of replacement vehicles for the Fire Department and $1.3 million for capital equipment for the Police Department.

“I’m not suing for anything other than the city to reduce the fees and do an analysis of charging those fees,” Pickett said. “I found out through open records requests that the city didn’t do any analysis. Nobody on Council asked how (City Manager Tommy Gonzalez) arrived at that number.”

Pickett said he intends to continue pursuing the lawsuit. The Eighth Court of Appeals opinion did not look at the merits of the case in Pickett’s lawsuit against the city.

“It’s hard for them to defend. We’re still not on the merits of the case,” Pickett said. “If Council doesn’t do something, and Karla (Nieman) and Tommy (Gonzalez) convince them to take it to the Texas Supreme Court and try to make someone like me give up and go away, that it costs money, we would actually go to court on the merits of the case.”