bethel-standley-v-wb-sansom-county-judge-manuel-rubio-wade-reagor ( 2012 )

OPINION
No. 04-11-00034-CV
Bethel STANDLEY,
Appellant
v.
W.B. SANSOM, County Judge; Manuel Rubio, Wade Reagor, Castulo San Miguel, and Joe W.
Connell, in their Official Capacities as County Commissioners of Real County; and Jim Wilson,
Appointed Constable,
Appellees
From the 38th Judicial District Court, Real County, Texas
Trial Court No. 2008-2819-DC
Honorable Stephen B. Ables, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: March 7, 2012
AFFIRMED
Former Real County constable Bethel Standley, appellant, sued the county judge, W.B.
Sansom, and other county officials, (hereinafter referred to as “the county,”) for trespass to try
title to the office of constable, and for salary and benefits of the office of constable. Standley also
sued for violations of the Texas Open Meetings Act. A jury found Standley had automatically
resigned from the office of constable, and the trial court rendered judgment that Standley take-
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nothing. On appeal, Standley complains about the trial court’s refusal to give certain instructions
and definitions to the jury, and the sufficiency of the evidence to support the verdict. Standley
also complains about the summary judgment rulings on his Texas Open Meetings Act claims.
We affirm the trial court’s judgment.
BACKGROUND
Article XVI, section 65(b) of the Texas Constitution, which applies to the office of
constable, provides:
If any of the officers named herein shall announce their candidacy, or shall in
fact become a candidate, in any General, Special or Primary Election, for any
office of profit or trust under the laws of this State or the United States other than
the office then held, at any time when the unexpired term of the office then held
shall exceed one (1) year, such announcement or such candidacy shall constitute
an automatic resignation of the office then held, and the vacancy thereby created
shall be filled pursuant to law in the same manner as other vacancies for such
office are filled.
TEX. CONST. art. XVI, § 65(b) (emphasis added). 1
In late 2007, while he still had more than one year to serve on his term as constable,
Standley decided to run for Real County sheriff. The county concluded Standley had
automatically resigned from the office of constable under article XVI, § 65(b) of the Texas
Constitution, commonly known as the “resign to run” provision. In April 2008, the county met in
a closed session meeting and appointed a replacement for Standley.
In October 2008, Standley filed the underlying lawsuit, alleging he did not automatically
resign from the office of constable under article XVI, section 65(b) of the Texas Constitution. In
addition, Standley alleged the county violated the announcement requirements of the Texas Open
1
In 2011, Article XVI, section 65(b) was amended. As amended, article XVI, section 65(b) provides “at any time
when the unexpired term of the office then held shall exceed one year and 30 days, such announcement or such
candidacy shall constitute an automatic resignation of the office then held . . . .” TEX. CONST. ANN. art. XVI, § 65(b)
(West 2012) (emphasis added).
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Meetings Act when it met in closed meetings in January 2008 and April 2008 and discussed the
appointment of a replacement for Standley. The parties filed cross-motions for summary
judgment on the Texas Open Meetings Act claims. Concluding the county did not violate the
Texas Open Meetings Act, the trial court granted the county’s summary judgment motion, and
denied Standley’s summary judgment motion.
The issue of Standley’s automatic resignation was tried to a jury. At trial, the evidence
showed the following. Standley stipulated he told a dozen people in the county that he was
running for sheriff while more than one year remained on his unexpired term. Many of the
conversations took place in public settings. The conversations were not confidential. One of the
people Standley told he was running for sheriff was the editor of the local newspaper. Standley’s
conversation with the newspaper editor was “on the record.” In addition, Standley completed a
primary ballot application for the office of sheriff and wrote a check for the filing fee, and
delivered these items to the party chairman while more than one year remained in his unexpired
term.
In question number one of the charge, the jury was asked, “Did Bethel Standley announce
his candidacy for Real County Sheriff prior to January 1, 2008?” In question number two of the
charge, the jury was asked, “Did Bethel Standley in fact become a candidate in the election for
Real County Sheriff prior to January 1, 2008?” The jury answered “yes” to both questions. In
accordance with the jury’s verdict, the trial court rendered judgment that Standley take nothing.
Thereafter, Standley filed a motion for judgment notwithstanding the verdict and a
motion for new trial. Both motions were denied. This appeal ensued.
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DISCUSSION
Article XVI, section 65(b) of the Texas Constitution establishes two grounds for
automatic resignation: (1) announcing candidacy, and (2) in fact becoming a candidate. See id. In
this case, the jury found both grounds for automatic resignation, and the trial court’s judgment is
based on both of these findings. Thus, if we uphold either ground, we must affirm the judgment.
On appeal, Standley raises complaints as to both grounds; however, we find it necessary
to address only Standley’s complaints about whether he announced his candidacy. See TEX. R.
APP. P. 47.1 (requiring appellate court opinions to be as brief as practicable while addressing
every issue raised and necessary to final disposition of the appeal).
Jury Instructions and Definitions
Standley complains the trial judge erred in instructing the jury that the county was
required to prove he automatically resigned by a preponderance of the evidence, rather than by
clear and convincing evidence. Standley further complains the trial court erred in not defining
the word “announce” in the charge. In support of this argument, Standley points to the fact that
the jury sent a note asking for a dictionary so it could obtain a definition of the term
“announce.” 2
1. Refusal of Instruction on Standard of Proof
As a preliminary matter, the county argues Standley waived this complaint because he
did not object to the portion of the charge instructing the jury on the preponderance of the
2
Standley also complains the trial court erred in refusing his jury instruction defining the phrase “in fact become a
candidate.” As previously stated, we need not reach this complaint.
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evidence standard. We disagree. In State Dep’t of Highways & Pub. Transp. v. Payne, the Texas
Supreme Court stated,
There should be but one test for determining if a party has preserved error in the
jury charge, and that is whether the party made the trial court aware of the
complaint, timely and plainly, and obtained a ruling. The more specific
requirements of the rules should be applied, while they remain, to serve rather
than defeat this principle. In this case, the State clearly met this test.
838 S.W.2d 235 (Tex. 1992).
Here, the record demonstrates the trial court was made aware of Standley’s precise
complaint—that he wanted the jury instructed to apply the clear and convincing standard of
proof rather than the preponderance of the evidence standard of proof—and made a ruling on it.
At the charge conference, the trial court first asked the county if it had any objections to the
proposed charge. The county made an objection which was overruled by the trial court. The trial
court then stated, “I’ve been presented by Plaintiff’s Counsel a proposed instruction on using
clear and convincing evidence instead of preponderance of the evidence, and I’m going to reject
that request, and I have signed that rejection and placed it in the file.” (emphasis added). Thus,
the trial judge understood that Standley was objecting to the preponderance of the evidence
instruction in the charge, and ruled on this complaint. We hold Standley’s complaint about the
proper standard of proof is preserved for appellate review.
As to the merits, Standley argues the trial court erred in instructing the jury that the
standard of proof was preponderance of the evidence, rather than clear and convincing evidence.
No Texas court has ever held that the standard of proof in an action involving article XVI,
section 65(b) of the Texas Constitution is clear and convincing evidence.
The clear and convincing evidence standard of proof has been held to apply in limited
situations, including punitive damage awards, actual malice, public-figure defamation cases,
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termination of parental rights, and civil involuntary commitments. See W. Wendell Hall,
Standards of Review in Texas, 38 ST. MARY’S LAW JOURNAL 47, 288 (2006). However, in the
vast majority of situations, the preponderance of the evidence standard applies. “[N]o doctrine is
more firmly established than that issues of fact are resolved from a preponderance of the
evidence.” Ellis Cnty. State Bank v. Keever, 888 S.W.2d 790, 792 (Tex. 1994) (quoting Sanders
v. Harder, 227 S.W.2d 206, 209 (1950)). “Only in extraordinary circumstances, such as when we
have been mandated to impose a more onerous burden, has this Court abandoned the well
established preponderance of the evidence standard.” Id. (rejecting the application of the clear
and convincing evidence standard in a malicious prosecution action).
To support his argument that the trial court erred in instructing the jury on the
preponderance of evidence standard of proof, Standley relies on Wentworth v. Meyer, 839
S.W.2d 766, 768 (Tex. 1992). In Wentworth, the Texas Supreme Court interpreted another
constitutional provision, article III, section 19, which provided that any person holding state
office was not eligible to run for the state legislature during the term for which he was elected or
appointed. At issue in Wentworth was the meaning of the word “term.” In construing article III,
section 19, the Supreme Court considered the purpose of the provision in light of the principle
that constitutional provisions which restrict the right to hold public office should be strictly
construed against ineligibility. See id. at 767-69. Thus, Wentworth had nothing to do with jury
instructions on the standard of proof; instead, it involved the interpretation of an ambiguous
constitutional provision. See id.
Nevertheless, based on Wentworth, Standley argues the clear and convincing evidence
standard of proof was required in this case. Standley argues “one way to incorporate the
Wentworth principle”—“to strictly construe the automatic resignation rule . . . to favor non-
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resignation whenever possible”—“would be to require that proof of resignation meet the
intermediate standard of proof of ‘clear and convincing evidence.’” We are not persuaded by
these arguments. Principles of constitutional construction and standards of proof are distinct
concepts that serve different functions. Nothing in Wentworth requires the use of the clear and
convincing standard of proof when, as here, a fact finder is evaluating whether an official
automatically resigned from office. Moreover, Standley’s analysis omits any discussion of the
purpose of article XVI, section 65(b), which is to ensure that officeholders give their undivided
attention to the duties of their current office during most of their term, instead of campaigning
while in the middle of the term. See Texas Legislative Council, Analysis of Proposed
Constitutional Amendments, November 8, 2011, Election, 59 (2011); see also TEX. ATTY. GEN.
OP. NOS. DM-377 (1996); WW-788 (1960).
We hold the proper standard of proof in this case was the preponderance of the evidence.
Thus, the trial court did not err in refusing to instruct the jury on the clear and convincing
evidence standard of proof.
2. Refusal of Instruction Defining “Announce”
Next, the county argues Standley waived his complaint about the trial court’s failure to
provide the jury an instruction defining “announce” as used in article XVI, section 65(b).
Standley did not complain about the absence of such a definition in the jury charge; however, he
did complain when the trial court refused to provide such a definition in a supplemental
instruction. During deliberations, the jury wrote a note asking for a dictionary so it could look up
the definition of “announce.” The trial court informed counsel it planned to deny the jury’s
request for a dictionary. Standley’s counsel then objected stating,
[I]n order to preserve error here, Your Honor, I would propose that they be given
a Black Law[] dictionary definition of the word ‘announce,’ being to formally
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proclaim . . . . I would reurge that they be given the Black’s Law dictionary
[definition] of announce because if that word is in there, perhaps it’s a legal term,
and [] perhaps we would be obligated to explain legal terms to them or terms that
wouldn’t necessarily be used in a common way.
In response to further questioning from the trial court, Standley’s counsel explained that he did
not have any authority for his position that the jury should be given the Black’s Law definition of
“announce” other than attorney general opinions indicating the word “announce” has a legal
meaning in the context of article XVI, section 65(b) of the constitution.
To the extent Standley complains the trial court’s failure to define “announce” in the jury
charge, we conclude he has not preserved his complaint for appellate review. However, under
Rule 286 of the Texas Rules of Civil Procedure, the trial court was authorized to give the jury
further instructions. TEX. R. CIV. P. 286. Thus, to the extent Standley complains the trial court’s
failure to provide a supplemental instruction defining the term “announce” in response to the
jury’s note, we conclude Standley has preserved his complaint for appellate review.
The trial court has considerable discretion in submitting instructions and definitions. First
State Bank and Trust Co. v. George, 519 S.W.2d 198, 207 (Tex. Civ. App.—Corpus Christi
1975, writ ref’d n.r.e.). Thus, we review the trial court’s decision for an abuse of discretion.
Green Tree Acceptance, Inc. v. Combs, 745 S.W.2d 87, 89 (Tex. App.—San Antonio 1988, writ
denied).
“The court shall submit such instructions and definitions as shall be proper to enable the
jury to render a verdict.” TEX. R. CIV. P. 277. “At a minimum, a jury charge must define those
words and other technical phrases that have distinct legal meanings.” Barnett v. Coppell N. Texas
Court, Ltd., 123 S.W.3d 804, 826 (Tex. App.—Dallas 2003, pet. denied) (stating the term
“release” has a distinct legal meaning). Thus, definitions are given to enable jurors to understand
legal words or phrases used so that they may properly answer the issues and render a verdict in
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the case. Houston Nat’l Bank v. Biber, 613 S.W.2d 771, 775-76 (Tex. Civ. App.—Houston [14th
Dist.] 1981, writ ref’d n.r.e.). However, words of ordinary meaning, readily understandable by
the average person, need not be defined in the charge. Allen v. Allen, 966 S.W.2d 658, 660 (Tex.
App.—San Antonio 1998, pet. denied) (holding the trial court improperly defined the word
“cohabitation” in the jury charge). Thus, definitions are provided when words or phrases are
given a distinctive meaning by law. Id.
Standley argues the word “announce” as used in section XVI, article 65(b) has a distinct
legal meaning because it is found in Black’s Law Dictionary. This argument is undermined,
however, by the fact that the definition found in Black’s Law Dictionary is virtually the same as
the definition found in Webster’s Dictionary. According to Black’s Law Dictionary, “announce”
means, “to make publicly known; to proclaim formally.” BLACK’S LAW DICTIONARY 98 (8th ed.
2004). According to Webster’s Dictionary, “announce” means “to make known publicly:
proclaim.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 87 (1991).
Standley further argues the attorney general opinions show the word “announce” as used
in article XVI, section 65(b) has a distinct legal meaning. According to Standley, the attorney
general “has consistently ruled that a person ‘announces’ not when a statement is made to a news
reporter, but when it is published, i.e., when it is ‘made known publicly.’” Standley goes on to
argue the attorney general opinions demonstrate that the meaning of “announce” does not turn
“on whether the public official told someone he was running for another office, but [on] whether
there was publicity about such a statement, or at least that the person was attempting to get such
publicity.”
We find these arguments unconvincing. First, attorney general opinions are persuasive;
they are not controlling authority. Holmes v. Morales, 924 S.W.2d 920, 924 (Tex. 1996). Thus,
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even if the attorney general opinions established that “announce” has a distinct legal meaning in
this context, they would not be binding on this court. Second, we do not construe the attorney
general opinions as standing for the proposition that “announce” has a distinct legal meaning. In
fact, some attorney general opinions cite to non-legal dictionary definitions in discussing the
meaning of “announce.” See, e.g., TEX. ATTY GEN. OP. NOS. GA-0769 (2010); GA-0643 (2008);
GA-0210 (2004). Moreover, the attorney general opinions are necessarily limited to the
particular facts and circumstances presented in each case. See TEX. ATTY GEN. OP. NOS. GA-
0210 (2004) (concluding a factfinder could reasonably conclude the officeholder’s private
conversation with a reporter that did not result in the publication of information about his
candidacy did not constitute an announcement of candidacy); DM-377 (1996) (concluding
candidacy was announced when officeholder made a statement at a commissioner’s court
meeting that he was “at the moment” a candidate for another office); WW-1253 (1962)
(concluding candidacy was announced when the officeholder issued a press release and an article
was published in the newspaper).
We hold the word “announce” as used in article XVI, section 65(b) of the Texas
Constitution has no distinct legal meaning. We further hold that the word “announce” as used in
question one of the jury charge in this case had its ordinary meaning and was readily
understandable by the average person. We conclude the trial court did not abuse its discretion by
refusing to give the jury a supplemental instruction defining “announce.”
Sufficiency of the Evidence
Next, Standley complains the evidence was legally and factually insufficient to support
the jury’s finding that he announced his candidacy before January 1, 2008. 3 Once again, the
3
Standley also complains the evidence was legally and factually insufficient to support the jury’s finding that he in
fact became a candidate before January 1, 2008. Again, we need not address this complaint.
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county argues Standley waived his legal and factual sufficiency complaints by not raising them
in the trial court.
To preserve error for a legal sufficiency issue as to a jury trial, the appellant must raise
the issue through one of the following: (1) a motion for directed verdict; (2) a motion for
judgment notwithstanding the verdict; (3) an objection to the submission of the question to the
jury; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a motion for new
trial. Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991). To complain on appeal about the
factual sufficiency of the evidence in a jury trial, the party must present the specific complaint to
the trial court in a motion for new trial. TEX. R. CIV. P. 324(b); Cecil, 804 S.W.2d at 510.
In his motion for judgment notwithstanding the verdict, Standley argued the evidence
was legally insufficient to support the jury’s finding that he announced his candidacy because the
“record contains no evidence that [Standley] made a formal declaration of candidacy to the
general public in a public setting prior to January 1, 2008.” In his motion for new trial, Standley
argued the jury’s finding that he announced his candidacy was “against the great weight and
preponderance of the evidence and [was] manifestly unjust.” We conclude Standley has
preserved his sufficiency complaints, and therefore, turn to the merits of Standley’s arguments.
1. Legal Sufficiency
When reviewing the legal sufficiency of the evidence to support a jury finding, we
consider all the evidence in the light most favorable to the challenged finding, crediting
favorable evidence if a reasonable jury could and disregarding contrary evidence unless a
reasonable jury could not. See City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). If
more than a scintilla of evidence supports the jury’s finding, the legal sufficiency challenge will
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fail. See Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41,
48-49 (Tex. 1998).
Here, the jury found Standley announced his candidacy for sheriff prior to January 1,
2008. There was ample evidence to support this finding.
Standley testified he remembered telling about a dozen people he was a candidate for
sheriff prior to January 1, 2008. Standley named the people he told he was a candidate prior to
January 1, 2008, in written stipulations which were admitted into evidence.
In addition, several witnesses testified Standley approached them before January 1, 2008,
and told them he was running for sheriff. Velva Escobedo, who was previously employed in the
sheriff’s office, testified Standley stopped her on the sidewalk outside the feed store in Leakey,
Texas, in late October or early November 2007, and told her he was running for sheriff. Standley
also told her he was planning to “clean house” when he became sheriff, and offered her a job
running the sheriff’s “front office.” Escobedo testified Standley stated unequivocally that he was
running for sheriff. Escobedo further testified she was told by two other people that Standley had
offered them the same job.
Jesse Lee Scott testified he spoke with Standley about his race for sheriff on two separate
occasions in December 2007. Both conversations took place in front of the post office in Leakey,
Texas. The first conversation took place before Christmas. Standley stopped Scott, stated he was
running for sheriff, and told him he needed support and votes. Scott told him he was not in a
position to make a financial contribution to Standley’s campaign because it was Christmastime
and he had a lot of grandchildren. The second conversation took place sometime between
Christmas and New Year’s Eve. Scott asked Standley how his campaign for sheriff was going,
and Standley asked Scott to tell his children that Standley needed their votes. Scott further
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testified these conversations were not supposed to be confidential and could have been overheard
by others.
Jimmy Wilson testified he went to William Earl “Dub” Edgar’s real estate office in
Leakey, Texas, during the first or second week in December 2007. According to Wilson, local
residents frequently congregated at Edgar’s office to visit. On this occasion, Standley stated he
was running for sheriff and suggested that Wilson run for constable. Wilson testified Edgar was
present when Standley made this statement, and other people may have been present as well.
Wilson further testified that Standley’s conversation with him was not private or confidential.
Wilson described the office where the conversation took place as a place where people “come
and go.” On December 28, 2007, Wilson had another conversation with Standley. In this
conversation, Standley confirmed he was running for sheriff rather than constable.
Penny Maguire, the editor of the local newspaper, “The Leakey Star,” also testified.
According to Maguire, her newspaper ran a story on December 14, 2007, stating Standley was
still deciding whether to run for constable or sheriff. Thereafter, Maguire received reports from
various sources that Standley had decided to run for sheriff. On December 27 or 28, 2007,
Maguire placed a telephone call to Standley. In a telephone conversation, Standley stated he was
definitely running for sheriff. The statement was made “on the record” and was not qualified in
any way. Maguire also testified candidates frequently used the press to further their own
publicity goals.
Wendell Burt Sansom Jr. testified that around December 22, 2007, he was asked by
Edgar’s wife, Faye, to support Standley in his race for sheriff. Sansom further testified that Edgar
told him at a New Year’s Eve party that Standley had filed as a candidate for sheriff. Edgar
identified himself as Standley’s campaign treasurer and friend. Edgar said he supported Standley
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in his run for sheriff. Sansom testified that the conversation he had with Edgar was not private,
and there were many people around when these statements about Standley’s candidacy were
made.
Standley asserts the evidence was legally insufficient because the jury heard no evidence
that he made a public or formal proclamation of candidacy. Standley essentially asserts that
evidence of an organized public or formal proclamation—something in the nature of a meeting
or a press conference before a group—was required for the jury to find Standley announced his
candidacy. We disagree. Here, the evidence showed Standley had numerous conversations in
which he told various people he was definitely running for sheriff prior to January 1, 2008. These
statements were not confidential and were made in public settings where Standley could have
been overheard. Moreover, in at least one of these conversations, Standley not only asked for
political and financial support, he asked that his candidacy for sheriff be publicized. Viewing the
evidence in the light most favorable to the jury’s finding, we hold the evidence was legally
sufficient to support the jury’s finding that Standley announced his candidacy for sheriff prior to
January 1, 2008.
2. Factual Sufficiency
When reviewing the factual sufficiency of the evidence to support a jury finding, we
consider all the evidence supporting and contradicting the finding. Plas–Tex, Inc. v. U.S. Steel
Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the verdict only if the evidence is so weak
or the finding is so against the great weight and preponderance of the evidence that it is clearly
wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
In addition to the previously detailed evidence supporting the jury’s finding, the record
also contains evidence contradicting the jury’s finding. Several witnesses testified Standley had
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no posters, billboards, cards, or ads concerning his candidacy for sheriff prior to January 1, 2008.
Additionally, Maguire testified it was common knowledge that “The Leakey Star” was published
every Friday. Maguire further testified that because of the newspaper’s schedule, Standley would
have known that any statements he made to her on December 27 or 28, 2007, would not be
published until Friday, January 3, 2008.
Moreover, contrary to Sansom’s testimony, William Earl Edgar Jr. testified he never
solicited support for Standley’s run for sheriff prior to January 1, 2008. Edgar further testified he
did not learn Standley was definitely running for sheriff until January 2 or 3, 2008.
Finally, contrary to Scott’s testimony, Standley testified he never asked Scott for a
campaign contribution.
Considering all of the evidence supporting and contradicting the jury’s finding, we
cannot say the evidence was so weak or the finding was so against the great weight and
preponderance of the evidence that it was clearly wrong and unjust. We, therefore, hold the
evidence was factually sufficient to support the finding that Standley announced his candidacy
for sheriff prior to January 1, 2008.
Texas Open Meetings Act Claims
Finally, Standley complains the trial court erred in granting the county’s motion for
summary judgment on his Texas Open Meetings Act claims, and in denying his cross-motion for
summary judgment on the same issue. We review the trial court’s summary judgment rulings de
novo. Willmann v. City of San Antonio, 123 S.W.3d 469, 472 (Tex. App.—San Antonio 2003,
pet. denied).
Generally, meetings of governmental bodies must be open to the public. See TEX. GOV’T
CODE ANN. § 551.002 (West 2004). Exceptions to the general rule are listed in Chapter 551,
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Subchapter D, of the Texas Government Code. See id. §§ 551.071-.089 (West 2004 & Supp.
2011). One of these exceptions is that a governmental body is not required to conduct an open
meeting to deliberate the appointment of a public officer. See id. § 551.074 (West 2004).
The purpose of the Texas Open Meetings Act is to enable public access to and to increase
public knowledge of government decisionmaking. City of San Antonio v. Fourth Court of
Appeals, 820 S.W.2d 762, 765 (Tex. 1991). To effectuate this purpose, the Texas Open Meetings
Act requires advanced written notice of all meetings held by a governmental body. See TEX.
GOV’T CODE ANN. § 551.041. In addition, the Texas Open Meetings Act requires the presiding
officer to publicly announce the governmental body’s intent to go into a closed meeting and
identify the statutory basis for doing so. See id. § 551.101. 4 Chapter 551, Subchapter E,
establishes the procedures related to a closed meeting. See id. §§ 551.101-.104.
In his lawsuit, Standley alleged the county failed to comply with section 551.101 of the
Texas Government Code by not publicly announcing the section or section numbers authorizing
its closed meetings on January 14, 2008, and April 14, 2008. The relief sought by Standley was
the release of the tape recordings of the meetings and a permanent injunction governing future
announcements. The parties filed cross-motions for summary judgment on the Texas Open
Meetings Act claims. The undisputed summary judgment evidence showed the challenged
announcements consisted of the county judge reading the written notices, which stated,
4
Section 551.101 of the Texas Government Code provides,
If a closed meeting is allowed under this chapter, a governmental body may not conduct the closed
meeting unless a quorum of the governmental body first convenes in an open meeting for which
notice has been given as provided by this chapter and during which the presiding officer publicly:
(1) announces that a closed meeting will be held; and
(2) identifies the section or sections of this chapter under which the closed meeting is
held.
TEX. GOV’T CODE ANN. § 551.101 (West 2004).
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Discussion and/or approval of Appointment of Constable for Precinct Nos. 1 & 2;
[EXECUTIVE SESSION IN ACCORDANCE WITH THE TEXAS OPEN
MEETINGS ACT, TEXAS GOVERNMENT CODE, CHAPTER 551,
SUBCHAPTERS D AND E].
Concluding the county did not violate the Texas Open Meetings Act, the trial court granted the
county’s summary judgment motion, and denied Standley’s summary judgment motion.
In a similar situation, the Austin court of appeals held an announcement that identified
the content of the exception was sufficient, even though it did not list the exception by its section
number. Lone Star Greyhound Park, Inc. v. Texas Racing Comm’n, 863 S.W.2d 742, 747-48
(Tex. App.—Austin 1993, writ denied). In Lone Star, the presiding officer stated the purpose of
the closed session was so that “legal staff” could brief the governmental body with respect to the
agenda and “the Lone Star matter” “passed down from the [c]ourt” for review. Id. at 747. In
upholding the announcement, the Austin court of appeals recognized the purposes of the
announcement requirement, and analyzed the announcement in light of whether it effectuated or
hindered these purposes. Id. at 747-48. The Austin court of appeals identified these purposes as:
(1) causing the governmental body to actually assess the applicability of the exceptions before
deciding to close the meeting; (2) fixing the governmental body’s legal position as relying upon
the exception specified; (3) informing those present at the meeting of that exception; and (4)
giving those present an opportunity to object intelligently. Id. at 747.
Adhering to the reasoning of Lone Star, we conclude the announcements in this case
were sufficient. The announcements identified the content of the closed meetings as the
appointment of a constable. The appointment of an officeholder is one of the exceptions to the
open meetings requirement found in subchapter D of the Texas Government Code. See TEX.
GOV’T CODE ANN. § 551.074. The announcements in this case provided at least as much
information about the content of the closed meetings as the announcement in Lone Star. The
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04-11-00034-CV
announcements in this case also directed the public to subchapters D and E of Chapter 551 of the
Texas Government Code. We conclude the announcements in this case effectuated the purposes
of the announcement requirement. We hold the trial court’s summary judgment rulings were
proper.
CONCLUSION
The judgment of the trial court is affirmed.
Karen Angelini, Justice
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