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Calhoun Port Authority v. Victoria Advocate Publishing Co.

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

April 11, 2019

CALHOUN PORT AUTHORITY, Appellant,
v.
VICTORIA ADVOCATE PUBLISHING CO., Appellee.

          On appeal from the 135th District Court of Calhoun County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Hinojosa

          MEMORANDUM OPINION

          DORI CONTRERAS CHIEF JUSTICE.

         This is 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 jurisdiction.

         I. Background

         This 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.[1] 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.

         In a 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.

         CPA 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]; (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 denied.[3]

         This 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 district").

         Following 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.

         II. Discussion

         CPA 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.

         A. Standard of Review

         A plea 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 ...


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