law-0pen-Meetings-Act | Public Information Act pka Texas Open Records Act


Kessling v. Friendswood ISD (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(Hedges)
suit alleging violations of the Texas Open Meetings Act (TOMA), Texas Public Information Act (TPIA), and
Texas Education Code)
Chief Justice Hedges  
Before Chief Justice Hedges, Justices Brock Yates and Frost    
14-07-01063-CV  Nancy Kessling v. Friendswood Independent School District, and Patricia Hanks    Appeal
from 56th District Court of Galveston County
Trial Court Judge: Lonnie Cox
Dissenting Opinion by Justice Frost in Kessling v. Friendswood ISD  

1.  TOMA Claims

The Texas Legislature enacted the TOMA in 1967 to ensure “that the public has the opportunity to be informed
concerning the transactions of public business."  Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex.
1990) (quoting Act of May 23, 1967, 60th Leg., R.S., ch. 271, § 7, 1967 Tex. Gen. Laws 597, 598).  Under the
TOMA, all meetings of governmental bodies must be kept open to the public unless the law expressly
authorizes a closed session.  See Tex. Gov't Code. § 551.002.  The TOMA contains provisions governing how
and when notices of meetings are to be posted and what the contents of those notices must be.  See id. §§
551.041-.043, 551.045, 551.047, 551.051-.052.  The TOMA additionally imposes certain requirements unique
to closed sessions, including that a certified agenda or electronic recording must be kept and that any vote or
final action must occur in an open meeting.  See id. §§ 551.102-.103.  Government Code section 551.142(a)
provides that A[a]n interested person . . . may bring an action by mandamus or injunction to stop, prevent, or
reverse a violation or threatened violation of [TOMA] by members of a governmental body."  As explained
above, in the present action, Kessling seeks a declaration concerning appellees' alleged prior TOMA violations
and a mandamus or injunction barring similar violations in the future.

In their motion for summary judgment, appellees argued that Kessling's TOMA claims were moot to the extent
that they related to meetings in the past and requested an impermissible advisory opinion to the extent that
they related to future meetings.  Both arguments essentially question whether Kessling has raised a justiciable
controversy.  The first argument asserts that claims concerning past meetings are moot, and the latter
argument questions whether claims concerning future meetings have ripened.  “To constitute a justiciable
controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests
and not merely a theoretical dispute."  Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995).  
Whether a justiciable controversy exists, and thus whether claims have become moot on the one hand and
whether they have ripened on the other, is a threshold question that implicates subject-matter jurisdiction.  
See, e.g., Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998)
(discussing ripeness); City of Houston v. Clark, 252 S.W.3d 561, 568 (Tex. App.- Houston [14th Dist.] 2008, no
pet.) (discussing mootness).  “A case becomes moot if a controversy ceases to exist or the parties lack a
legally cognizable interest in the outcome."  Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005).  The
doctrine of ripeness “asks whether the facts have developed sufficiently so that an injury has occurred or is
likely to occur, rather than being contingent or remote."  Patterson, 971 S.W.2d at 442.

Appellees base their justiciability arguments on the Austin Court of Appeals' analysis in Cornyn v. City of
Garland, 994 S.W.2d 258 (Tex. App.- Austin 1999, no pet.).  In Cornyn, the trial court denied by way of
summary judgment the complainant's requests for a declaratory judgment that prior city counsel meeting
notices were deficient and a permanent injunction and writ of mandamus requiring full TOMA compliance in the
future.  994 S.W.2d at 266.  The Austin court affirmed, holding that the declaratory judgment claim was moot
and that the request for injunction and for writ of mandamus required an advisory opinion (i.e., was not yet ripe
for decision).  Id. at 267.[4]  Other courts, however, including this one, have arrived at different conclusions
from those of the Cornyn court regarding the mootness of prior TOMA violations and the ripeness of
threatened future violations.

a.  Future Meetings

For reasons which will become apparent, we begin by addressing the claims concerning threatened future
violations.  In Harris County Emergency Service District No. 1 v. Harris County Emergency Corps, we upheld an
injunction preventing the appellant governmental entity from holding certain types of meetings in the future
without proper notice.  999 S.W.2d 163, 171 (Tex. App.- Houston [14th Dist.] 1999, no pet.).  As authority, we
cited section 551.142(a), which authorizes A[a]n interested person . . . [to] bring an action by mandamus or
injunction to stop, prevent, or reverse a violation or threatened violation of the TOMA."  Id. (quoting 551.142
(a)) (emphasis added).  We looked to a pattern of past improper meeting notices to support an injunction
against holding future meetings without proper notice.

To avoid the justiciability challenges, Kessling is only required to plead sufficient facts to support jurisdiction.  
See City of Waco v. Lopez, 259 S.W.3d 147, 150 (Tex. 2008).  Kessling's pleadings are sufficient to make a
claim under Harris County Emergency in that she explicitly alleged a pattern and practice of certain kinds of
TOMA violations and requested injunctive and mandamus relief to prevent future violations of the same
nature.  Consequently, the trial court erred in granting summary judgment against Kessling's claims concerning
future meeting notices.[5]

b.  Past Meetings

We now turn to Kessling's claims with regards to past violations.  In City of Farmers Branch v. Ramos, 235 S.W.
3d 462 (Tex. App.- Dallas 2007, no pet.), the Dallas Court of Appeals also deviated from the Cornyn court's
conclusions.  In Ramos, the complainant alleged that the city council had violated the TOMA on specific
instances when it passed certain ordinances, and the city countered that questions concerning such alleged
violations were rendered moot because the ordinances in question had been subsequently repealed.  235 S.W.
3d at 468-69.  The court of appeals rejected the city's position, stating that: “If a governmental body illegally
deliberates and decides an issue in closed session, repealing the action so that it can be retaken in a later
setting does not vindicate the very right protected by TOMA. . . .  'Our citizens are entitled to more than a
result.  They are entitled not only to know what government decides but to observe how and why every
decision is reached.'"  Id. at 469-70 (quoting Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990)).  
The court then concluded that the complainant's request for a declaration of TOMA violations, coupled with a
potential remedy involving production of certified agenda from the illegally closed meetings, established that
the issue was not moot.  Id. at 470.

We agree with the Ramos court that a TOMA violation is not rendered moot simply because it occurred in the
past but remains a live controversy insofar as it supports a future remedy.  Kessling's claims of past TOMA
violations and threatened future violations are, in fact, inextricably intertwined.  The remedy that she requests
based on past violations is the prohibition (by mandamus or injunction) of future violations.  She attempts to
prove the likelihood of those future violations by demonstrating a pattern and practice of violations in the past.  
Thus, following Harris County Emergency and Ramos, the controversy regarding past violations has not
become moot, and the controversy regarding future violations is ripe.  Consequently, the trial court erred in
granting summary judgment against Kessling's TOMA claims on these bases.  We sustain Kessling's first
issue.  It is important to note, however, that our resolution of this issue does not mean that Kessling ultimately
has valid TOMA claims or that she has demonstrated a pattern and practice of TOMA violations.  These
questions were not raised by appellees' motion.  We hold only that Kessling has sufficiently pleaded her TOMA