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Lugo v. Donna Independent School District Board of Trustees

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 30, 2017

ERNESTO LUGO, Appellant,
v.
DONNA INDEPENDENT SCHOOL DISTRICT BOARD OF TRUSTEES, Appellee.

         On appeal from the 92nd District Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa.

          OPINION

          ROGELIO VALDEZ CHIEF JUSTICE.

         Appellant, Ernesto Lugo, filed an action against appellee, the Donna Independent School District Board of Trustees (the Board), under the Texas Open Meetings Act (TOMA) and the Uniform Declaratory Judgment Act (UDJA) due to the actions taken by the Board on February 9, 2016. The trial court denied Lugo's motion for partial summary judgment and granted the Board's motion for partial summary judgment. By two issues, Lugo contends that "[t]he uncontested summary judgment evidence showed that [the Board's] appointment of replacement trustees violated the notice provisions of [TOMA], because the posted agenda item on the subject of trustee vacancies specifically stated that the Board would consider taking action to call a special election to fill the vacancies" and Lugo's claims are not moot. We reverse and remand.

         I. Background

         Lugo and Efren Ceniceros, who is not a party to this appeal, were both trustees on the Board in 2016. Two other trustees, Eloy Infante and Elpidio Yanez Jr., resigned from the Board in January 2016. According to Lugo, he and Ceniceros "wanted these vacancies to be filled by special called election, and publically announced they would not attend a Board meeting that had an agenda item that could authorize filling these two vacancies by appointment." An agenda posting for a January 27, 2016 Board meeting stated: (1) "Discussion and Possible Action on all Available Options for the Filling of Vacancies" on the Board; (2) "Appointment to Fill said Vacancies by the Remaining Members of the Board"; and (3) "Discussion and Possible Action Regarding Calling a Special Election for May 7, 2016 to Fill the Unexpired Trustee Terms" for Infante's and Yanez's seats on the Board. This meeting did not occur because Ceniceros and Lugo did not attend.

         Subsequently, an agenda posting for a February 9, 2016 Board meeting stated only one item as follows: "Discussion and Possible Action Regarding Calling a Special Election for May 7, 2016 to Fill the Unexpired Trustee Terms for" Infante's and Yanez's seats on the Board. All five trustees attended the February 9, 2016 meeting, and at the meeting, Lugo moved for the Board to approve a special election for May 7, 2016 to elect new members in Infante's and Yanez's seats. The motion failed. The minutes of this meeting show that "Trustee Castillo moved to amend the motion by substituting the language calling for a special election with" language calling for the appointment of David de los Rios and Dennis Ramirez to fill the vacancies caused by Infante's and Yanez's resignations. The minutes indicate that the motion was approved.

         Lugo filed his suit three days later claiming that the Board violated section 551.041 of TOMA, which he claimed "requires that the public receive specific notice of, through a posted agenda, each meeting of a Texas public school district before the Board of Trustees is authorized to take any action [on] governmental business." See Tex. Gov't Code Ann. § 551.041 (West, Westlaw through 2017 1st C.S.). Lugo claimed that "[t]he oral amendment to [his] motion amounted to an attempt to amend the agenda item as stated in the posted agenda, in violation of" TOMA. Lugo argued that "[t]he only action that the Board was authorized to take pursuant to the posted agenda was to call special elections to fill the two vacant Trustee positions."

         The Board filed a general denial, and it counter-sued for declaratory relief and attorney's fees. The Board sought a declaration that "the appointment of Dennis Ramirez and David de los Rios to fill the vacant seats in Place 5 and [Place] 6 on the school board made by a majority of the Board of Trustees present at a special meeting on February 9, 2016, was valid and was supported by sufficient notice under" TOMA.

         Lugo filed a motion for partial summary judgment seeking, among other things, a declaratory judgment that the Board's appointments of De Los Rios and Ramirez as Trustees were void because the Board violated TOMA by failing "to post public notice of each subject that the Board would deliberate about during the Board meeting held on February 9, 2016, at least 72 hours prior to the convening of this meeting."

         The Board filed an answer to Lugo's motion for partial summary judgment and its own motion for partial summary judgment, wherein the Board asserted several objections and exceptions to Lugo's summary judgment evidence. In response to Lugo's motion, the Board alleged that the evidence presented genuine issues of material fact on one or more elements of Lugo's cause of action. Specifically, the Board stated that a question of fact existed regarding whether the public received sufficient notice of the subject of the February 9, 2016 meeting to authorize the Board to fill the two vacancies on the Board by appointment rather than by special election. The Board cited the affidavit of Carlos Armando Villarreal who stated, "I learned that Lugo . . . asked for an item on the agenda to call for a special election to fill the two vacant seats . . . I saw the agenda item" calling for a special election on May 7, 2016, and "I understood the item on the agenda for the meeting to mean that the two vacancies would be filled, one way or the other, and it was known that the Board could fill the vacant seats either by a special election or by appointment by the members of the Board."

         The Board requested partial summary judgment on the grounds that it is not necessary for governmental units to state in the agenda all of the possible consequences which may necessarily flow from the consideration of the subject stated. And, here, the agenda broadly indicated that the Board would discuss replacement of Infante and Yanez. The Board again cited Villarreal's affidavit wherein he stated that he understood the agenda item to mean that the Board would discuss filling the vacancies either by special election or by appointment.

         The trial court denied Lugo's motion for partial summary judgment, and it granted the Board's motion for partial summary judgment. This appeal followed.

         II.Mootn ...


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