Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 135th District Court of Calhoun County,
Chief Justice Contreras and Justices Benavides and Hinojosa
CONTRERAS CHIEF JUSTICE.
an appeal of an interlocutory order denying a plea to the
jurisdiction in a suit brought under the Texas Open Meetings
Act (TOMA). See Tex. Gov't Code Ann. ch. 551
(West, Westlaw through 2017 1st C.S.). By four issues,
appellant Calhoun Port Authority (CPA) argues that the trial
court erred in denying its jurisdictional challenges to the
suit filed by appellee Victoria Advocate Publishing Co. (the
Advocate), a newspaper publisher. We vacate the trial
court's judgment and dismiss the case for want of
case involves CPA's May 9, 2018 decision to hire former
United States Representative Blake Farenthold as a lobbyist.
The Advocate filed suit alleging that CPA failed to provide
proper notice under TOMA that Farenthold's hiring would
be deliberated or discussed at the May 9 meeting of CPA's
board of commissioners. The Advocate's suit asked the trial
court to: (1) declare that CPA violated TOMA by deliberating
and discussing the hiring of Farenthold without legally
adequate notice; (2) issue an injunction "revers[ing] or
void[ing]" the hiring and "prevent[ing] future
violations of [TOMA]"; and (3) award costs and
attorney's fees to the Advocate. The Advocate argued that
the decision to hire Farenthold was "of special interest
to the public" due to Farenthold's "current
notoriety arising from the circumstances of his recent
resignation" from Congress.
third amended petition, the Advocate further alleged that
CPA, in response to the initial filing of suit, noticed a
special board meeting for May 24, 2018. According to the
Advocate, at the May 24 meeting, the board "removed the
role of the Port Director" in determining
Farenthold's employment-an action which the Advocate
argued was also unlawful under TOMA because it was not stated
in the notice. The Advocate alleged that, instead of holding
a public vote on Farenthold's hiring, the board held a
vote on whether to fire him on May 24; and because
there were three votes for and three against, Farenthold
remained employed by CPA. The Advocate alleged that CPA
committed separate violations of TOMA by failing to properly
maintain any recording or Certified Agenda for the May 9 or
May 24 closed sessions.
filed a plea to the jurisdiction arguing: (1) there is no
justiciable controversy because the Advocate alleged no
"action" that can be voided under
TOMA; (2) the Advocate's claims are moot
due to the decisions made by the board at the May 24 meeting;
and (3) there is no justiciable controversy concerning
publication of the Certified Agenda of the May 9 meeting
because CPA "alleges no viable basis for public
disclosure of the Certified Agenda under TOMA." The
Advocate filed a response. After a hearing, the trial court
denied the plea. CPA later filed an amended plea to the
jurisdiction addressing the claims made in the Advocate's
third amended petition, which the trial court also
accelerated interlocutory appeal followed. See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West,
Westlaw through 2017 1st C.S.) (allowing immediate appeal of
interlocutory order denying a plea to the jurisdiction by a
governmental unit); id. § 101.001 (West,
Westlaw through 2017 1st C.S.) (defining "governmental
unit" to include a navigation district); Tex. Spec.
Dist. Code Ann. § 5003.002 (West, Westlaw through 2017
1st C.S.) (stating that CPA "is a navigation
the initial round of briefing in this appeal, the Advocate
notified this Court on January 16, 2019, that Farenthold has
resigned his position with CPA, thereby rendering the
Advocate's claims moot to the extent they seek to have
Farenthold's hiring declared void.
argues on appeal that the trial court erred by denying its
plea for four reasons: (1) there is no justiciable
controversy because the Advocate did not allege any board
"action," such as a vote, that would be voidable
under TOMA; (2) prospective injunctive relief is not
permitted under TOMA where there is no "pattern and
practice of past violations"; (3) TOMA section 551.104
does not permit a court to order publication of a Certified
Agenda "based solely on a putatively inadequate meeting
notice"; and (4) the Uniform Declaratory Judgments Act
(UDJA) does not expand jurisdiction beyond the "limited
waiver" for claims made under TOMA.
Standard of Review
to the jurisdiction is a dilatory plea used to defeat a cause
of action without regard to whether the claims asserted have
merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d
547, 554 (Tex. 2000). The plaintiff has the initial burden to
plead facts affirmatively showing that the trial court has
subject matter jurisdiction. Tex. Ass'n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
Whether a trial court has subject matter jurisdiction and
whether the pleader has alleged facts that affirmatively
demonstrate the trial court's subject matter jurisdiction
are questions of law that we review de novo. Tex.
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004); Tex. Natural Res. Conservation
Comm'n v. IT-Davy, 74 S.W.3d 849, 855 ...