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City of Plano v. Hatch

Court of Appeals of Texas, Fifth District, Dallas

August 26, 2019

CITY OF PLANO, TEXAS, Appellant
v.
GREG HATCH AND LAURA HATCH, Appellees

          On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-01849-2017

          Before Justices Bridges, Osborne, and Reichek

          OPINION

          LESLIE OSBORNE JUSTICE

         Greg Hatch and Laura Hatch sued the City of Plano, Texas ("City") alleging violations of the Texas Open Meetings Act. In this interlocutory appeal, the City challenges the trial court's denial of its plea to the jurisdiction. We conclude that the trial court has jurisdiction over the Hatches' requests for mandamus and injunctive relief and their request to declare an ordinance void but lacks jurisdiction over the Hatches' remaining requests for declaratory relief. Accordingly, we affirm the trial court's order in part and reverse in part.

         Background

         The Hatches filed suit against the City alleging violations of the Texas Open Meetings Act in the City's adoption of Ordinance No. 2014-12-7 (the "Ordinance") in 2014. See Texas Open Meetings Act, Tex. Gov't Code Ann. §§ 551.001-551.146 ("TOMA"). The Ordinance amended the City's non-discrimination policy, renaming Section 2-11 of the City of Plano Code of Ordinances "the Equal Rights Policy." The "Summary of Item" included on the City's "Council Agenda Item" form provided:

The City Council desires to rename and expand the City of Plano's Non-Discrimination policy to afford equal human rights to individuals regardless of U.S. military/veteran status, genetic information, sexual orientation and gender identity in addition to the other protected characteristics set out above; to revise the outdated term "handicapped status" to "disability status"; and to prohibit discrimination in places of public accommodation, employment practices, housing transactions and city contracting practices.

         Although the City Council voted to adopt the Ordinance in a public meeting on December 8, 2014, after two hours of public debate, the Hatches alleged that the City Council actually held its deliberations and voted on the Ordinance in closed meetings prior to the December 8 public meeting. In their operative petition, the Hatches alleged four violations of TOMA:

1. the City illegally convened and held executive session meetings for an illegal purpose, to hold substantive deliberation about the Ordinance;
2. the City surveyed Council members for their policy positions on the Ordinance, establishing a "walking quorum";
3. the City failed to maintain an adequate Certified Agenda; and
4. the City's public notice was "deliberately dishonest" about the fact that the Ordinance was new.

         The Hatches alleged that the City's violations of TOMA were criminal acts. They pleaded for declarations (1) that the Ordinance is void, and (2) "that the conduct and actions of the City as described herein violate the Hatches' rights, the rights of Plano's citizens, and Texas law." They also pleaded that they sought "a declaration preventing the City from simply reenacting" the City's equal rights policy.

         The City filed a plea to the jurisdiction alleging that the Hatches failed to plead a claim under TOMA that would give rise to a waiver of the City's governmental immunity. The City contended:

1. the Hatches did not plead for writs of mandamus or injunction, the only relief available under TOMA, but instead pleaded for declaratory relief, which is not available;
2. TOMA requires that the Hatches sue the individual members of the City Council, not the City;
3. the Hatches improperly "attempt to block Plano's legislative right to pass future ordinances";
4. there is no waiver of the City's immunity for the Hatches' claims that the City violated criminal statutes;
5. the Hatches' claims are moot, because only one of the members of the City Council who allegedly violated TOMA is still serving on the Council;
6. because the City posted and conducted a public meeting on December 8, 2014 where the Ordinance was passed, any prior alleged TOMA violations are moot and ...

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