Opinion issued=20
February 14, 2008
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-06-00580-CV
CITY OF GALVESTON, TEXAS, BP ENERGY =
COMPANY, AND=20
THE BOARD OF TRUSTEES OF THE GALVESTON WHARVES, =
Appellants/Cross-Appellees
V.
NANCY SAINT-PAUL,=20
Appellee/Cross-Appellant
On Appeal from the =
122nd=20
Judicial District
Galveston County,=20
Texas
Trial Court Cause =
No.=20
05CV0503
MEMORANDUM=20
OPINION
<=
/SPAN>This=20
appeal concerns whether three meetings that resulted in an option =
for a=20
lease for property on Pelican Island, which is owned by appellant, =
the=20
City of Galveston (=E2=80=9Cthe City=E2=80=9D), but controlled and =
managed by appellant,=20
the Board of Trustees of the Galveston Wharves (=E2=80=9Cthe =
Board=E2=80=9D), met the requirements of the Texas Open =
Meetings=20
Act (=E2=80=9Cthe Act=E2=80=9D). See Tex. Gov=E2=80=99t Code =
Ann.=20
=C2=A7=C2=A7 551.001=E2=80=93.146 (Vernon 2004=20
& Supp. 2007). After a bench trial, the trial court=20
determined that (1) =
the notice for the meeting by the Board =
to approve=20
a Lease Option Agreement (=E2=80=9Cthe Option Agreement=E2=80=9D) =
with BP Energy=20
Company was inadequate =
under the Act=20
because it =E2=80=9Cdid not provide sufficient information on the =
subject to be=20
considered by the governing body=E2=80=9D;=20
(2) the notice for the City=E2=80=99s meeting for the =
attornment ![3DFootnote](3D"")
of the lease was also inadequate =
under the=20
Act because it =E2=80=9Cdid not provide sufficient information on =
the subject to=20
be considered by the City Council=E2=80=9D;=20
and (3) the notice for the meeting by the Board to approve the =
Replacement=20
Lease Option Agreement (=E2=80=9Cthe Replacement =
Agreement=E2=80=9D) met the requirements=20
of the Act, replaced the Option Agreement, and was not a =
ratification of=20
the Option Agreement.
<=
/SPAN>In=20
a single issue, the Board asserts that the notice for the meeting at which it =
agreed to=20
the Option Agreement was adequate. In two issues, the City contends =
that its=20
notice for the Attornment Agreement meeting met the requirements =
of the=20
Act and that it should have been the prevailing party entitled to =
an award=20
of attorney=E2=80=99s fees under the Act.
In four issues in the cross-appeal, =
appellee,=20
Nancy Saint-Paul, contends that the trial court erred (1) by =
finding valid=20
the Replacement Agreement =
because it=20
merely ratified the Option Agreement that had been formed in =
violation of=20
the Act; (2) by refusing to hold the Option Agreement invalid on =
the=20
grounds that it violated =
the Texas=20
Government Code as it did not involve competitive bidding and it =
was a=20
sale disguised as a lease; and (3) by sustaining the =
Board=E2=80=99s claim of the=20
attorney-client privilege for certain documents requested during=20
discovery.
<=
/SPAN>We conclude that the notice of the =
Board=E2=80=99s meeting=20
to consider the Replacement Agreement met the requirements of the =
Act and=20
therefore affirm the trial court=E2=80=99s determination that the =
Replacement=20
Agreement was valid. We dismiss as moot the Board=E2=80=99s sole =
issue, which=20
asserts that the notice for its meeting regarding the Option =
Agreement met=20
the requirements of the Act, because the Option Agreement was =
replaced by=20
the Replacement Agreement. We also dismiss Saint-Paul=E2=80=99s =
challenges aimed=20
at voiding the Option Agreement for the Board=E2=80=99s failure to =
comply with the=20
bidding requirements because she lacks standing to make that =
complaint.=20
We reverse the portion of =
the trial=20
court=E2=80=99s judgment in which it ruled that the notice for the =
City=E2=80=99s=20
Attornment Agreement meeting did not meet the requirements of the =
Act, and=20
we remand to the trial court to consider the City=E2=80=99s =
request for attorney=E2=80=99s=20
fees. We also do not reach=20
Saint-Paul=E2=80=99s evidentiary challenge, which is contingent on =
a remand of the=20
Board=E2=80=99s appeal.
Background
<=
/SPAN>The=20
City set aside its wharf and terminal properties as a separate =
city=20
utility known as the Galveston Wharves. The Galveston Wharves and =
the=20
=E2=80=9Cincome and revenue therefrom=E2=80=9D are =E2=80=9Cfully =
managed, controlled, maintained=20
and operated by a Board of Trustees.=E2=80=9D Although the City =
retains ownership=20
of the property, the Board =
has the=20
powers of =E2=80=9Cfixing =
of charges, the=20
authorization of expenditures, the acquisition of properties, the=20
determination of policies, and, in general, the complete =
management and=20
control of the Galveston Wharves and the income and revenue=20
thereof.=E2=80=9D
<=
/SPAN>The=20
Board, created in 1940 by the City, consists of seven members and has =
regularly=20
scheduled meetings once a month.=20
It takes four members to =
constitute a=20
quorum. To carry out its =
day to day=20
business, the Galveston Wharves has a full time staff led by the =
Port=20
Director, Steve Cernak.
<=
/SPAN>As=20
early as 2002, Cernak began discussions with BP about a possible =
lease of=20
a site for BP to construct and operate a liquefied natural gas =
terminal.=20
In May 2003, two representatives from BP met with three members of =
the=20
Board. The meeting was held over lunch in a restaurant. The =
participants=20
in this meeting described the discussion as a =
=E2=80=9Cget-to-know-you meeting,=E2=80=9D=20
where the BP representatives provided a general description of the =
proposed project. In April 2004, Cernak signed a Letter of Option =
Intent=20
that set forth the initial business terms concerning a lease =
option=20
agreement that included a confidentiality provision that =
prohibited=20
disclosure of the existence of the negotiations or subject matter. =
Through=20
the summer of 2004, BP=E2=80=99s counsel worked with Hulse Wagner, =
counsel for the=20
Galveston Wharves, to prepare a proposed agreement that would =
require=20
approval by the Board.
<=
/SPAN>The Board=E2=80=99s meeting to discuss =
the Option=20
Agreement occurred on September 20, 2004. The notice for that =
meeting was=20
posted in public on September 16, four days before the meeting. =
The notice=20
stated that the meeting was to =E2=80=9CDiscuss and Consider =
Approval of Option=20
Agreement for the Lease of Approximately 185 Acres of Land on =
Pelican=20
Island.=E2=80=9D After the meeting was convened, the Board met in =
an executive=20
session, which is closed to the public, to discuss the lease. =
During the=20
executive session, the Board desired changes to the proposed =
agreement.=20
Cernak left the room to =
call a BP=20
representative to discuss whether BP would accept the proposed =
changes and=20
BP agreed to the changes. The Board adjourned its executive =
session, but=20
immediately reconvened in an open meeting, where it approved the=20
agreement. The terms of the =
Option=20
Agreement gave BP a three-year option to enter a lease on a 185 =
acre tract=20
on Pelican Island to allow =
BP to=20
construct a liquefied natural gas import terminal or for other=20
=E2=80=9Cenergy-related purposes.=E2=80=9D The=20
underlying lease has a =
35-year term,=20
with two 15 year extensions.
<=
/SPAN>Although=20
Pelican Island is managed by the Board, it is owned by the City, =
which=20
therefore also had to approve the lease through an attornment =
agreement.=20
The City=E2=80=99s meeting =
to discuss the=20
Attornment Agreement was on =
September=20
23, 2004. The Attornment =
Agreement=20
provided that the City would assume the rights and obligations of =
the=20
Board under the lease if the Board ever ceased to be the lessor of =
the=20
property. The notice for that City Council=E2=80=99s meeting =
stated,
Consider for action approving an =
agreement to=20
execute an Attornment Agreement between the City of Galveston, the =
Port of=20
Galveston, and BP Energy company relating to a Lease Agreement by =
and=20
between the Board of Trustees of the Galveston Wharves and BP =
Energy=20
Company for approximately 185.134 acres located on Pelican=20
Island.
The City agreed to the Attornment =
Agreement at=20
that meeting.
<=
/SPAN>At=20
about the same time as the City=E2=80=99s meeting, media attention =
surrounded the=20
topic of the lease of the land on Pelican Island. In a six month =
period of=20
time beginning on September 21, 2004, the Galveston Daily News=20
published multiple articles regarding the proposed liquefied =
natural=20
gas project. The Houston Chronicle also published articles. =
Advertisements supporting and opposing the project were published =
by BP=20
and groups opposed to the project, respectively. To inform the =
public=20
about the proposed project, BP=20
representatives also made presentations to community groups and=20
neighborhood associations and held two open houses. On its =
website, BP=20
also provided information about the project.
<=
/SPAN>About=20
five months after the Board agreed to the Option Agreement, it had =
a=20
meeting on February 28, 2005 to=20
discuss an agreement to replace the Option Agreement. The highly =
detailed=20
notice for that meeting undisputedly complied with the Act. At the =
meeting, the Board approved the Replacement Agreement, which was =
intended=20
to supercede and replace the Option Agreement, although the =
underlying=20
lease remained the same. The Board wanted to replace the Option =
Agreement=20
with the Replacement Agreement so that an additional matter could =
be added=20
into the agreement. The Board, which had received some criticism =
about the=20
notice for the meeting where it entered into the Option Agreement, =
also=20
wanted to respond to the criticism by holding another meeting =
about the=20
lease with a more detailed notice about the topic. After the Board =
voted=20
to approve the Replacement Agreement, Saint-Paul filed suit to =
challenge=20
the actions by the Board and the City.
Saint-Paul=E2=80=99s=20
Cross-Appeal
<=
/SPAN>In=20
four issues, Saint-Paul challenges the trial court=E2=80=99s =
rulings that did not=20
void the Replacement Agreement or the Option Agreement and that =
allowed=20
the Board to exclude discovery by its claim of the attorney-client =
privilege.
A. The=20
Replacement Agreement
<=
/SPAN>In her first issue, Saint-Paul contends that the trial =
court erred=20
by not voiding the Replacement Agreement because the vote to =
accept the=20
Replacement Agreement is an illegal ratification of the =
Board=E2=80=99s prior void=20
action approving the Option Agreement.
Specifically, Saint-Paul asserts that =
the=20
essential terms of the Replacement Agreement are the same as the =
Option=20
Agreement, in that the rentals, base terms, and extension terms =
are the=20
same. She contends that the Option Agreement was =E2=80=9Ctainted =
irretrievably by=20
the fact that the agreement was reached in a closed session =
pursuant to an=20
ineffective notice.=E2=80=9D She points to Cernak=E2=80=99s =
actions in leaving the closed=20
meeting and then returning to the meeting after speaking to the BP =
representative as violations of the requirement that votes be =
conducted in=20
open meetings. Further, she points to evidence that she claims =
shows that=20
the Board =E2=80=9C=E2=80=98cut=E2=80=99 their deal with BP at or =
before the closed=20
session.=E2=80=9D
<=
/SPAN>The=20
Board responds that the Replacement Agreement was valid because a=20
governmental entity that has violated the Act may subsequently =
take the=20
same action as long as the subsequent action complies with the =
Act=E2=80=99s=20
provisions and the subsequent action does not have retroactive =
effect. The=20
Board also asserts that the record does not contain any evidence =
that the=20
Board violated the Act in its notice for the meeting where it =
agreed to=20
the Option Agreement.
<=
/SPAN>The purpose of the Act is to ensure that =
citizens=20
have the opportunity to observe governmental decision making. =
Cox=20
Enters., Inc. v. Bd. of Trs., 706 S.W.2d 956, 960 (Tex. 1986). =
The Act=20
uses two principal mechanisms to accomplish this. First, subject =
to=20
specified exceptions, the Act requires that meetings of a quorum =
of a=20
government body be open to the public. Tex. Gov=E2=80=99t Code =
Ann. =C2=A7 551.002=20
(Vernon 2006). Second, the Act entitles the public to receive=20
advance notice of the =
subjects to be=20
discussed at an open meeting so that citizens can decide if they =
want to=20
observe the meeting. See id. at =C2=A7 551.041. The =
Act ensures compliance with the public =
meeting and=20
advance notice requirements by making =E2=80=9Cvoidable=E2=80=9D =
any action taken by a=20
government body in violation of the Act. See id. at =C2=A7 =
551.141.=20
However, the Act does not prevent governmental bodies from curing =
prior=20
Act violations. See Fielding v. Anderson, 911 S.W.2d 858, =
864 (Tex.=20
App.=E2=80=94Eastland 1995, writ denied); see also Smith County =
v.=20
Thornton, 726 S.W.2d 2, 3 (Tex. 1986) (noting that original =
action=20
that was voidable for lack of adequate notice can be authorized by =
later=20
action by governmental body that complies with Act). An=20
action taken in violation of the Act cannot be ratified to have=20
retroactive effect, but the governmental body may reconsider and=20
re-authorize an action. Burks v. Yarbrough, 157 S.W.3d 876, =
883=20
(Tex. App.=E2=80=94Houston [14th Dist.] 2005, no pet.) (citing Markowski v. City of =
Marlin, 940=20
S.W.2d 720, 726 (Tex. App.=E2=80=94Waco 1997 pet. denied)); see =
also=20
Fielding, 911 S.W.2d at 864=E2=80=9365 (holding that =
governmental body may=20
re-authorize action taken at prior meeting that did not comply =
with Act=20
because otherwise =E2=80=9Conce a governmental body has done a =
void act, the=20
situation could never be corrected=E2=80=9D).
<=
/SPAN>Saint-Paul=20
correctly notes that the Replacement Agreement is similar to the =
Option=20
Agreement in that they both terminate on the same day, have the =
same=20
underlying lease, and rely on the same consideration by BP since =
BP paid=20
no new consideration under the Replacement Agreement. Although the =
agreements share similarities, we agree with the trial =
court=E2=80=99s=20
determination that the Replacement Agreement was not merely a =
ratification=20
of an earlier void act. The Replacement Agreement differed from =
the Option=20
Agreement by including a term not in the Option Agreement, namely =
that=20
BP would reimburse the =
Galveston=20
Wharves for the cost of constructing a road to access the =
property.=20
The Board gave a highly =
detailed=20
notice for the meeting where it agreed to the Replacement =
Agreement and=20
there is no dispute that the highly detailed notice satisfied the=20
requisites of the Act.
By its express terms, the =
Replacement=20
Agreement supersedes and =
replaces the=20
Option Agreement. We =
conclude that=20
the trial court did not err by determining that the =
Board=E2=80=99s Replacement=20
Agreement did not merely ratify the Option Agreement. See =
Burks,=20
157 S.W.3d at 883 (=E2=80=9CEven assuming the=20
Commissioners Court somehow held an unlawful meeting by signing =
the new=20
check, any impropriety was corrected when the Commissioners Court, =
at=20
Burks=E2=80=99s request, subsequently reconsidered the issue and =
again approved=20
payment.=E2=80=9D).
<=
/SPAN>Saint=20
Paul cites to Esperanza Peace and Justice Ctr. v. City of San=20
Antonio, 316 F.Supp.2d 433 (W.D. Tex. 2001) and Dallas County Flood Control Dist. =
No. 1 v.=20
Cross, 815 S.W.2d 271, 283=E2=80=9384 (Tex. =
App.=E2=80=94Dallas 1991, writ=20
denied), which hold that =
actions=20
committed in violation of the Act can later be re-taken at a =
subsequent=20
properly convened meeting, but determining that the Act was =
violated by=20
facts that showed that the subsequent meeting merely ratified =
action taken=20
at an earlier improper meeting. See Esperanza, 316 F.Supp.2d at 442 (determining Act =
was=20
violated by facts that showed mayor=20
and members of city council met in closed session, during which =
they=20
approved budget through consensus memorandum that they =
signed and holding that subsequent open =
meeting when=20
council reconvened next day did not satisfy Act because members =
had=20
already signed their approval of consensus-memorandum-budget that=20
eliminated funding for plaintiff=E2=80=99s organization prior to =
open meeting and=20
no new discussion on budget occurred); Cross, 815 S.W.2d at =
283=E2=80=9384 (determining that Act was violated by facts that =
showed that sale of property at closed meeting =
violated=20
Act and that subsequent open meeting approving of sale was also in =
violation of Act because sale had been completed, consideration =
paid, and=20
deed delivered before occurrence of open meeting; holding that =
subsequent=20
meeting merely improperly ratified earlier sale). Assuming that=20
Saint-Paul is correct that the Board violated the Act by reaching =
the=20
agreement with BP before the meeting at which the Board agreed to =
the=20
Option Agreement, an allegation that the trial court found she =
failed to=20
prove, the facts are =
distinguishable=20
from Esperanza and Cross. See=20
Esperanza, 316 =
F.Supp.2d=20
at 442; Cross, 815 =
S.W.2d at=20
283=E2=80=9384. =
Unlike Esperanza and=20
Cross, the =
Replacement=20
Agreement does not merely ratify the Option Agreement, but it =
instead=20
supercedes that agreement and changes it by adding another term.=20
See =
Esperanza, 316 F.Supp.2d at 442; =
Cross, 815 S.W.2d at =
283=E2=80=9384. The trial=20
court=E2=80=99s determination that the Replacement Agreement did =
not merely ratify=20
the Option Agreement is also supported by facts that demonstrate =
that, in=20
response to criticism about the notice for the meeting where it =
agreed to=20
the Option Agreement, the Board desired to reconsider the matter =
after it=20
posted a sufficiently detailed notice of the topic for=20
consideration. We hold that =
the Board=20
did not violate the Act by meeting to discuss and approve the =
Replacement=20
Agreement. We overrule Saint-Paul=E2=80=99s first =
issue.
B. The=20
Option Agreement
<=
/SPAN>In=20
her second and third issues, Saint-Paul contends that the proposed =
lease=20
to BP is illegal and cannot be enforced because it was not the =
result of=20
the bidding requirement in Local=20
Government Code section 272.001 that applies to the sale of public =
land,=20
which she claims applies here for this =E2=80=9Csale disguised as =
a=20
lease.=E2=80=9D
Saint-Paul presents one joint =
argument=20
under these two issues relating to whether the lease was in fact a =
sale.=20
We therefore treat these issues together. The Board asserts that=20
Saint-Paul does not have standing to contest the invalidity of the =
lease=20
to BP. BP similarly asserts that Saint-Paul does not have standing =
to=20
bring her suit because she cannot show a particularized injury, =
distinct=20
from other members of the public.
<=
/SPAN>Standing=20
implicates a court=E2=80=99s subject matter jurisdiction. Patterson v. =
Planned=20
Parenthood of Houston, 971 S.W.2d 439, 442=E2=80=9343 (Tex.=20
1998). Standing is a =
component of=20
subject-matter jurisdiction, cannot be waived, and is essential to =
a=20
court=E2=80=99s power to decide a case. Williams v. Lara, =
52 S.W.3d 171,=20
178 (Tex. 2000); Bland Indep. School Dist. v. Blue, 34 =
S.W.3d 547,=20
553=E2=80=9354 (Tex. 2000). Unless a particular statute =
conveys standing, a=20
plaintiff who sues to challenge governmental decision-making must=20
demonstrate that she has an interest in a conflict separate from =
that of=20
the general public and that the defendant=E2=80=99s actions have =
caused the=20
plaintiff some particular injury. Williams, 52 S.W.3d at =
178=E2=80=9379;=20
Bland Indep.=20
School Dist, 34 S.W.3d at 555=E2=80=9356.
<=
/SPAN>To show standing under section 272.001, =
a=20
plaintiff must show =E2=80=9Ca particular personal interest that =
was harmed by the=20
alleged defect=E2=80=9D in a disposition of public property. =
Bell v. Katy=20
Indep. Sch. Dist., 994 S.W.2d 862, 866 (Tex. =
App.=E2=80=94Houston [1st Dist.]=20
1999, no pet.). Saint-Paul offered no evidence, nor does she =
claim, that=20
she would have submitted a bid to purchase the property had a =
competitive=20
bid process existed. She therefore lacks standing to assert a =
cause of=20
action under section 272.001. See id. (holding that =
plaintiffs=20
lacked standing where they did not contend that deficiency in =
notice under=20
section 272.001 caused them to lose opportunity to bid on property =
or that=20
they had interest in attempting to purchase property). Because we =
lack=20
subject-matter jurisdiction, we dismiss Saint-Paul=E2=80=99s =
second and third=20
issues.
C. Evidentiary=20
Ruling
<=
/SPAN>In=20
her fourth issue, Saint-Paul contends that the trial court erred =
by=20
=E2=80=9Csustaining the [Board=E2=80=99s] plea of attorney-client =
privilege as to certain=20
documents which had been released in discovery, and then recalled =
by the=20
[Board].=E2=80=9D Saint-Paul specifically points to Exhibit 48, =
which is an email=20
dated February 13, 2004 from the Board=E2=80=99s attorney Wagner =
to Cernak.=20
According to Saint=E2=80=99s Paul=E2=80=99s brief, the exhibit =
=E2=80=9Cis a sealed copy of a=20
document which proves that the [Board] and their counsel knew at =
the=20
outset that the course they eventually pursued as =
illegal.=E2=80=9D The Board=20
responds that the trial court did not err because the documents in =
question are protected by the attorney-client privilege. =
<=
/SPAN>Saint-Paul=E2=80=99s=20
fourth issue is contingent on remand.=20
In her prayer, Saint-Paul states, =E2=80=9CCross Appellant =
conditionally prays=20
that in the event of remand, the Court of Appeals reverse the =
trial=20
Court=E2=80=99s holding as to PX-48 (Ground 4).=E2=80=9D Although =
we are remanding to the=20
trial court for consideration of attorney=E2=80=99s fees to the =
City, we are not=20
remanding any part of the appeal concerning the Board, which is =
the entity=20
to which this exhibit pertains. We therefore do not reach =
Saint-Paul=E2=80=99s=20
fourth issue.
Appeal =
by the=20
Board
<=
/SPAN>In=20
its sole issue, the Board asserts that the trial court erred by =
finding=20
that the notice was inadequate under the Act for the meeting that =
resulted=20
in the Board=E2=80=99s approval of the Option Agreement. =
In its appeal, the Board prays for =
reversal of the=20
declaration that the notice was inadequate, but it does not =
affirmatively=20
ask for rendition or remand, nor does it raise the issue of =
attorney=E2=80=99s=20
fees. =
Having upheld the trial court=E2=80=99s =
determination that=20
the Replacement Agreement =
properly=20
replaced and superseded the Option Agreement, the matter of =
whether the=20
Board=E2=80=99s notice concerning the meeting where it agreed to =
the Option=20
Agreement is not a live controversy because the Option Agreement =
is no=20
longer in effect. Because the Option Agreement is no longer in =
effect, any=20
decision we might make will not affect the parties rights. See =
Pinnacle Gas =
Treating, Inc.=20
v. Read,=20
104 S.W.3d 544, 545 (Tex. 2003) (noting that case is moot if =
court=E2=80=99s=20
actions cannot affect parties=E2=80=99 rights). Therefore,=20
any opinion on the adequacy of notice for the meeting that =
resulted in the=20
Option Agreement would be impermissibly advisory. See Valley Baptist =
Med. Ctr.=20
v. Gonzalez, 33 S.W.3d 821, =
822 (Tex.=20
2000) (ruling on moot controversy constitutes impermissible =
advisory=20
opinion). We dismiss =
the=20
Board=E2=80=99s appeal as moot.
Appeal =
by the=20
City
<=
/SPAN>In=20
two issues, the City challenges the trial court=E2=80=99s =
determination that the=20
notice for the Attornment Agreement meeting was inadequate and the =
trial=20
court=E2=80=99s failure to consider the City as the prevailing =
party for purposes=20
of awarding attorney=E2=80=99s fees. In its findings of fact, the =
trial court=20
concluded that the City=E2=80=99s =E2=80=9CNotice of=20
the subject matter (attornment agreement) of the 9/23/2004 =
workshop and=20
council meetings was insufficient and violated [the Act].=E2=80=9D =
A. Sufficiency=20
of the City=E2=80=99s Notice
<=
/SPAN>In=20
its first issue, the City contends that the trial court erred by=20
concluding that the notice did not meet the requirements of the =
Act=20
because the notice fairly advised the =E2=80=9Creader of the =
subject or topic for=20
the governing body=E2=80=99s consideration.=E2=80=9D The City contends that the notice =
satisfied the=20
requirements of the Act by identifying the parties to the =
agreement and=20
the type of agreement at issue, as well as the statement that it =
relates=20
to an underlying lease between the Galveston Wharves and BP. =
Saint-Paul replies that the trial court =
correctly=20
concluded that the notice was not adequate because it did not =
mention the=20
purpose of the underlying lease, which was a liquefied natural gas =
facility, or the length of the term of the lease, which indicates =
that the=20
transaction was in reality a sale disguised as a lease. =
<=
/SPAN>The Act provides, =E2=80=9CA =
governmental body shall give=20
written notice of the date, hour, place, and subject of each =
meeting held=20
by the governmental body.=E2=80=9D Tex.=20
Gov=E2=80=99t Code Ann. =C2=A7 551.041 (Vernon 2004). When =
the contents of the=20
notice are undisputed, as here, the sufficiency of the notice =
becomes a=20
question of law that we review de novo. Burks, 157 S.W.3d =
at=20
883. =E2=80=9CAs long as a =
reader is alerted=20
to the topic for consideration, it is not necessary to state all =
of the=20
consequences which may flow from consideration of the =
topic.=E2=80=9D Cox=20
Enters., 706 S.W.2d at 958. =E2=80=9CEven if a notice is not =
as clear as it=20
could be, it is adequate as long as it is sufficiently descriptive =
to=20
alert a reader that a particular subject will be =
addressed.=E2=80=9D Burks,=20
157 S.W.3d at 883. However, =
the=20
greater the public interest in the matter to be discussed, the =
more=20
specific the notice must be. Cox Enters., 706 S.W.2d at =
959;=20
City of Laredo v. Escamilla, 219 S.W.3d 14, 19 (Tex. =
App.=E2=80=94San=20
Antonio 2006, pet. denied) (citing Markowski, 940 S.W.2d at =
726).=20
=E2=80=9CThe focus of our =
analysis is a=20
comparison between the content of the notice given and the action =
taken at=20
the meeting.=E2=80=9D Rettberg v.=20
Tex. Dep=E2=80=99t of Health, 873 S.W.2d=20
408, 412 (Tex. App.=E2=80=94Austin 1994, no writ); see also =
Odessa Tex.=20
Sheriff=E2=80=99s Posse, Inc. v. Ector County, 215 S.W.3d 458, =
473 (Tex.=20
App.=E2=80=94Eastland 2006, pet. denied); Markowski, 940 S.W.2d at =
726.
<=
/SPAN>The=20
action taken at the meeting was that the City entered into an =
=E2=80=9CAgreement=20
Regarding Attornment Agreement.=E2=80=9D The Agreement contained =
two exhibits: the=20
proposed lease between BP and Galveston Wharves and a proposed =
attornment=20
agreement between BP and the City. The Agreement provided that if =
BP=20
entered into a lease with the Galveston Wharves =E2=80=9Cin =
substantially the form=20
attached hereto=E2=80=9D then the City would =E2=80=9Center into =
the Attornment Agreement=20
in substantially the form attached hereto.=E2=80=9D
<=
/SPAN>The notice for that City =
Council=E2=80=99s meeting=20
states,
Consider for action approving an =
agreement to=20
execute an Attornment Agreement between the City of Galveston, the =
Port of=20
Galveston, and BP Energy company relating to a Lease Agreement by =
and=20
between the Board of Trustees of the Galveston Wharves and BP =
Energy=20
Company for approximately 185.134 acres located on Pelican=20
Island.
<=
/SPAN>The City=E2=80=99s notice specifically =
discloses (1) the=20
parties to the proposed agreement, namely, the City, the Port of=20
Galveston, and BP; (2) the type of proposed agreement, namely, an=20
attornment agreement; (3) the subject of the underlying agreement =
to be=20
attorned, namely, a lease agreement; (4) the parties to the =
underlying=20
lease agreement, who are identified as the Board and BP; and (5) =
the=20
location and size of the property that is identified as 185.134 =
acres=20
located on Pelican Island. The notice stated that the City would =
consider=20
approving an =E2=80=9Cagreement to execute an Attornment =
Agreement,=E2=80=9D which is what=20
the City did. The notice further identified that the Attornment =
Agreement=20
related to a lease between BP and the Galveston Wharves, which is =
the=20
action taken at the meeting. We hold that the notice in this case =
is=20
specific enough to notify a reader of the subject of the =
City=E2=80=99s meeting.=20
See Rettberg, 873 S.W.2d at 412. We sustain the City=E2=80=99s first =
issue.
B. Attorney=E2=80=99s=20
fees
<=
/SPAN>In=20
its second issue, the City contends that =E2=80=9C[b]ecause the =
district court=20
erred in failing to dismiss with prejudice all of St. =
Paul=E2=80=99s claims, the=20
court correspondingly erred in failing to regard the City as a =
prevailing=20
party for the purpose of determining whether the City is entitled =
to an=20
award of attorneys=E2=80=99 fees under=E2=80=9D the Act.
<=
/SPAN>Section=20
551.142 of the Government Code provides that a prevailing party in =
a Texas=20
Open Meetings Act suit may recover its fees and costs. Tex. Gov=E2=80=99t Code =
Ann. =C2=A7 551.142=20
(Vernon 2004). Whether to make an award of fees and costs under =
the Act=20
falls within the trial court=E2=80=99s sound discretion. =
Bell, 994 S.W.2d=20
at 867. Here, the trial court granted the relief sought by =
Saint-Paul=20
against the City, but ordered that each party bear its own =
attorney=E2=80=99s fees=20
and costs. Because we have reversed the trial court=E2=80=99s =
judgment concerning=20
the Act as against the City, we remand for the trial court to =
exercise its=20
discretion whether to award attorney=E2=80=99s fees to the City. =
See Odessa=20
Tex. Sheriff=E2=80=99s Posse, 215 S.W.3d at 474 (remanding for =
attorney=E2=80=99s fees=20
issue when trial court did not have chance to exercise its =
discretion=20
under Act); Moosavideen v. Garrett, No. 01-06-00002-CV, =
2007 WL=20
2130566, at *8 (Tex. App.=E2=80=94Houston [1st Dist.] July 26, =
2007, no pet. h.) (remanding to trial court to =
reconsider attorney=E2=80=99s fees issue when trial =
court=E2=80=99s declaratory judgment=20
was reversed). We sustain the City=E2=80=99s second =
issue.
Conclusion
=
We affirm the =
trial court=E2=80=99s=20
judgment concerning the Board=E2=80=99s adoption of the =
Replacement Agreement.=20
We dismiss Saint-Paul=E2=80=99s appeal =
concerning the lack=20
of bidding because she lacks standing to assert that claim. We =
dismiss the=20
appeal by the Board because the issue is moot. We do not reach the =
discovery challenge by Saint-Paul. We reverse the trial =
court=E2=80=99s=20
declaration that the City=E2=80=99s notice was inadequate and hold =
that it was=20
adequate to meet the requirements of the Texas Open Meetings Act. =
We=20
remand this cause for the trial court to consider the =
City=E2=80=99s request for=20
attorney=E2=80=99s fees under the Texas Open Meetings =
Act.
&=
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p; =
; Elsa=20
Alcala
&=
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; Justice
Panel consists of Chief Justice Radack =
and=20
Justices Jennings and=20
Alcala. |