Court of Appeals of Texas, Sixth District, Texarkana
Submitted: June 7, 2019
Appeal from the 33rd District Court Burnet County, Texas
Trial Court No. 47531
Morriss, C.J., Burgess and Stevens, JJ.
R. MORRISS, III CHIEF JUSTICE
Oaks Water Supply Corporation, a governmental subdivision,
posted notices of a public meeting at which Windermere's
board authorized the sale of a portion of Windermere's
property to a third party. However, the notices failed to
include the subject of the prospective sale as required by
Section 551.041 of the Texas Government Code and, thus,
violated the Texas Open Meetings Act (Act). After the closing
of the sale, TOMA Integrity, Inc., and John Dial sued to
obtain declarations that Windermere had violated the Act and
that the board's authorization was invalid. The 33rd
Judicial District Court in Burnet County,  Texas, found a
violation of the Act, but refused to declare the board's
does not challenge the finding that it violated the Act.
Rather, this appeal is brought by TOMA and Dial, who argue
that, while they received this favorable finding, the trial
court abused its discretion in failing to void the
board's actions. Because we find that (1) a declaration
voiding the board's actions was unavailable under the Act
and (2) TOMA and Dial's requests relating to past notices
are moot, we affirm the trial court's judgment.
of governmental bodies generally must be open to the
public." Tex. State Bd. of Pub. Accountancy v.
Bass, 366 S.W.3d 751, 759 (Tex. App.-Austin 2012, no
pet.) (citing Tex. Gov't Code Ann. § 551.002).
"Section 551.102 provides that: 'A final action,
decision, or vote on a matter deliberated in a closed meeting
under this chapter may only be made in an open meeting that
is held in compliance with the notice provisions of this
chapter.'" Id. at 762 (quoting Tex.
Gov't Code Ann. § 551.102). "The Act's
purposes are to provide public access to and increase public
knowledge of governmental decision-making." Id.
at 759 (citing City of San Antonio v. Fourth Court of
Appeals, 820 S.W.2d 762, 765 (Tex. 1991)). To that end,
a governmental body, like Windermere, is required to
"give written notice of the date, hour, place, and
subject of each meeting held by the governmental
body." Tex. Gov't Code Ann. § 551.041.
"The intended beneficiaries of the Act are members of
the interested public, not individual citizens such as the
accountants in this case." Bass, 366 S.W.3d at
appeal, it is undisputed that Windermere failed to include
the subject matter of the meeting from its public notices
issued December 19, 2015, and February 22, 2016, and thus
violated the Act. After the board authorization was so
obtained, Windermere sold the property to a third party in
March 2016. The Act provides that "an action taken by a
governmental body in violation of [the Act] is
voidable." Tex. Gov't Code Ann. § 551.141.
Thus, any "interested person . . . may bring an action
by mandamus or injunction to stop, prevent, or reverse a
violation or threatened violation of this chapter by members
of a governmental body." Tex. Gov't Code Ann. §
December 2017, TOMA and Dial sued Windermere and prayed that
the trial court "reverse the violation of [the Act] and
declare void the action the [Windermere] Board took on
December 19, 2015[, ] to sell [Windermere's] property and
on February 22, 2016[, ] to again authorize the sale and
authorize officers to sign the closing documents without the
required public notice." Although the trial court found
Windermere violated the Act, it declined to declare void the
board's actions or reverse the violation.
A Declaration Voiding the Board's Actions Was Unavailable
Under the Act
allows for actions "by mandamus or injunction to stop,
prevent, or reverse a violation or threatened
violation." Tex. Gov't Code Ann. § 551.142(a);
see Bass, 366 S.W.3d at 760. "There is a split
in authority regarding whether [the Act] waives immunity for
declaratory judgment actions." Calhoun Port Auth. v.
Victoria Advocate Publ'g Co., No. 13-18-00486-CV,
2019 WL 1562003, at *3 n.4 (Tex. App.-Corpus Christi Apr. 11,
2019, no pet.) (mem. op.). The Austin Court of Appeals has
determined that the Act "set[s] the boundaries of [its]
waiver of immunity to the express relief provided in the
statute-injunctive and mandamus relief-and [does not]
extend the scope of waiver to include the declaratory
relief." Id. (alterations in original) (quoting
City of New Braunfels v. Carowest Land,
Ltd., 549 S.W.3d 163, 173 (Tex. App.-Austin 2017,
is designed to provide an "immediate remedy" for
violations. Cornyn v. City of Garland, 994 S.W.2d
258, 267 (Tex. App.-Austin 1999, no pet.). TOMA and
Dial's petition did not seek immediate mandamus or
injunctive relief. Rather, after the property was sold, they
sought declaratory relief that the board's past actions
were void. Such relief is unavailable. Id.
(2) TOMA and Dial's Requests Relating to Past Notices
assuming the trial court could entertain TOMA and Dial's
request to declare the board's actions void under the
circumstances of this case and the precedent of the Austin
Court of Appeals, nothing required the trial court to do so.
"TOMA expressly provides '[a]n action by a
governmental body in violation of this chapter is
voidable'-not void or void ab initio." Love
Terminal Partners v. City of Dallas, 256 S.W.3d 893, 897
(Tex. App.-Dallas 2008, no pet.) (alteration in original)
(quoting Tex. Gov't Code Ann. § 551.141). "The
terms have distinct legal meanings." Id.
(citing Buddy Gregg Motor Homes, Inc. v. Motor Vehicle
Bd., 179 S.W.3d 589, 618 (Tex. App.-Austin 2005, pet.
denied)). "If an action is void or void ab initio, the
transaction is a nullity." Id. "If,
however, conduct is merely voidable, the act is valid until
adjudicated and declared void." This is because a
violation of the Act "does not equate to a failure to
properly execute the contract." Hous. Auth. of City
of Dallas v. Killingsworth, 331 S.W.3d 806, 812 (Tex.
App.-Dallas 2011, pet. denied). Thus, the board's
approval of and actions to effectuate the sale "remain
valid 'until adjudicated and declared void.'"
Id. at n.5 (quoting Love Terminal Partners,
L.P., 256 S.W.3d at 897 (citing Swain v. Wiley
College, 74 S.W.3d 143, 146 (Tex. App.- Texarkana 2002,
no pet.) ("A 'voidable' act operates to