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Toma Integrity, Inc. v. Windermere Oaks Water Supply Corp.

Court of Appeals of Texas, Sixth District, Texarkana

June 21, 2019

TOMA INTEGRITY, INC., AND JOHN DIAL, Appellants
v.
WINDERMERE OAKS WATER SUPPLY CORPORATION, Appellee

          Submitted: June 7, 2019

          On Appeal from the 33rd District Court Burnet County, Texas Trial Court No. 47531

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          JOSH R. MORRISS, III CHIEF JUSTICE

         Windermere 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, [1] Texas, found a violation of the Act, but refused to declare the board's actions invalid.

         Windermere 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.

         "Meetings 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."[2] 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 759.

         In this 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. § 551.142(a).

         In 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.

         (1) A Declaration Voiding the Board's Actions Was Unavailable Under the Act

         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, pet. filed)).[3]

         The Act 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 Are Moot

         Even 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 ...


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