in Re City of Galveston ( 2015 )

ACCEPTED
14-14-01005-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
1/9/2015 6:10:53 PM
CHRISTOPHER PRINE
CLERK
No. 14-14-01005-CV
In the Fourteenth Court of Appeals FILED IN
14th COURT OF APPEALS
Houston, Texas HOUSTON, TEXAS
1/9/2015 6:10:53 PM
CHRISTOPHER A. PRINE
Clerk
CITY OF GALVESTON,
Relator
vs.
INDIAN BEACH PROPERTY OWNERS’ ASSOCIATION, INC.,
Real Party in Interest
Original Proceeding on Petition for Writ of Mandamus
from the 122nd Judicial District Court
Galveston County, Texas
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
Angie Olalde
State Bar No. 24049015
Andrew J. Mytelka
State Bar No. 14767700
Stephen G. Schulz
State Bar No. 17848300
GREER, HERZ & ADAMS, L.L.P.
2525 South Shore Blvd., Ste. 203
League City, Texas 77573
(409) 797-3200 (Telephone)
(866) 422-4406 (Facsimile)
COUNSEL FOR REAL PARTY-IN INTEREST
INDIAN BEACH PROPERTY OWNERS’ ASSOCIATION, INC.
IDENTITY OF PARTIES AND COUNSEL
Relator Real Party in Interest
City of Galveston Indian Beach Property Owners’
Association, Inc.
Relators’ Trial and Appellate Counsel
Lead Counsel on Appeal
John J. Hightower
Scott Bounds Angie Olalde
OLSON & OLSON, L.L.P. State Bar No. 24049015
Wortham Tower, Suite 600 Greer, Herz & Adams, L.L.P.
2727 Allen Parkway 2525 South Shore Blvd., Suite 203
Houston, Texas 77019-2133 League City, Texas 77573
Trial Counsel for Real Parties in Interest
Respondent
Andrew J. Mytelka
Hon. John Ellisor State Bar No. 14767700
122nd Judicial District Court Stephen G. Schulz
Galveston County, Texas State Bar No. 17848300
600 59th Street, Room 4304 One Moody Plaza, 18th Floor
Galveston, Texas 77551 Galveston, Texas 77550
(409) 766-2275
Additional Party
Judy Shorman
Counsel for Judy Shorman
Robert Shattuck, Jr.
1018 23rd Street
Galveston, Texas 77550
i
TABLE OF CONTENTS
Statement of the Case............................................................................................. vii
Issues Restated ....................................................................................................... vii
Statement of Facts .....................................................................................................1
Summary of the Argument........................................................................................6
Argument...................................................................................................................8
A. Standard of Review and Applicable Law.............................................8
1. Standard of Review in Mandamus Proceedings ...........................8
2. The Texas Open Meetings Act .....................................................9
3. The City bears the burden of establishing privilege or
a TOMA exception .....................................................................11
B. Response to the City’s discussion on Indian Beach’s allegations ..... 12
C. The trial court’s factual determination was not arbitrary or
unreasonable .......................................................................................12
1. Procedures taken before or after a closed session cannot
cure TOMA violations that occur during a closed session ........12
2. TOMA’s legal advice exception is narrow, and any
discussion straying from legal advice is improper,
and illegal....................................................................................15
3. The trial court’s order determined facts that cannot be
challenged on mandamus ...........................................................19
4. The City’s characterizations of the records contents
should not be considered ............................................................23
ii
D. Extraneous recordings are not sought ................................................25
E. If the counsel strayed from its posted agenda topic, it violated
TOMA’s notice requirements.............................................................25
Conclusion and Prayer ............................................................................................28
iii
INDEX OF AUTHORITIES
Cases
Acker v. Tex. Water Comm'n,
790 S.W.2d 299 (Tex. 1990) ........................................................................ passim
Bd. of Adjustment of City of Univ. Park, Tex. v. Legacy Hillcrest Inv., L.P.,
No. 05-13-1128-CV, 2014 WL 6871403
(Tex. App.—Dallas 2014, no pet. h.).......................................................................15
City of Farmers Branch, et.al vs. Ramos,
235 S.W.3d 462 (Tex. App.—Dallas 2007, no pet.) ................................... 9,11,25
City of Prescott v. Town of Chino Valley,
803 P.2d 891 (Ariz. 1990) ....................................................................................17
City of San Antonio v. Fourth Court of Appeals,
820 S.W.2d 762 (Tex. 1991) .......................................................................... 10,16
Cox Enter., Inc. v. Bd. of Trustees,
706 S.W.2d 956 (Tex. 1986) ........................................................................ passim
Davis v. Huey,
571 S.W.2d 859 (Tex. 1978) ..................................................................................9
Diocese of Galveston-Houston v. Stone,
892 S.W.2d 169 (Tex.App—Houston [14th Dist.] 2011, orig. proceeding) .........22
Fairchild v. Lib. Indep. Sch. Dist.,
466 F. Supp. 2d 817 (E.D. Tex. 2006) ..................................................................11
Finlan v. City of Dallas,
888 F. Supp. 779 (N.D. Tex. 1995) ........................................................... 13,15,18
GAF Corp. v. Caldwell,
839 S.W.2d 149(Tex. App.—Houston [14th Dist.] 1992, orig. proceeding) ....9,22
iv
Gardner v. Herring,
21 S.W.3d 767 (Tex. App.—Amarillo 2000, no pet.) .................................. passim
Huie v. DeShazo,
922 S.W.2d 920 (Tex. 1996) ................................................................................16
In re Carbo Ceramics Inc.,
81 S.W.3d 369 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding) ........23
In re E.I. DuPont de Nemours and Co.,
130 S.W.3d 218 (Tex. 2004) ................................................................................11
In re EPIC Holdings, Inc.,
985 S.W.2d 41 (Tex. 1998) ....................................................................................8
In re Ford Motor Co.,
165 S.W .3d 315 (Tex. 2005) .................................................................................8
In Re Geico Gen. Ins. Co.,
No. 14-06-00423-CV, 2006 WL 3511694 (Tex. App.—Houston
[14th Dist.] Dec. 7, 2006, .....................................................................................25
In re La. Tex. Healthcare Mgmt., L.L.C.,
349 S.W.3d 688 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) ......22
Killam Ranch Properties, Ltd. v. Webb County,
376 S.W.3d 146 (Tex. App.—San Antonio 2012, pet. denied) ...........................22
Markowski v. City of Marlin,
940 S.W.2d 720 (Tex. App.—Waco 1997, writ denied) ................................ 10,24
Olympic Waste Servs. v. City of Grand Saline,
204 S.W.3d 496 (Tex. App.—Tyler 2000, no pet.)................................... 11,12,15
People v. Whitney,
578 N.W.2d 329 (Mich. App. 1998) ....................................................................17
Tex. State Bd. of Pub. Accountancy v. Bass,
366 S.W.3d 751 (Tex. App.—Austin 2012, no pet.)............................................17
v
Underwood v. City of Presque Isle,
715 A.2d 148 (Me. 1998) .....................................................................................17
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) ................................................................. 8, 9, 22, 23
Statutes
Tex. Gov't Code § 551.002 (Vernon 2012) ...............................................................9
Tex. Gov't Code § 551.041 ......................................................................................25
Tex. Gov't Code § 551.071 (Vernon 2012) ....................................................... 10,26
Miscellaneous
Tex. Atty. Gen. Op. DM-98 (1992) .........................................................................27
Tex. Atty. Gen. Op. JC-0057 (1999) .......................................................................27
Tex. Atty. Gen. Op. JC-0233 (2000) ................................................................. 15,17
Tex. Atty. Gen. Op. JM-100 (1983) .................................................................. 15,18
Tex. Atty. Gen. Op. MW-0578 (1982) ....................................................................10
Tex. Atty. Gen. Op. No. JC-0506 (2002) ................................................................11
Tex. Atty. Gen. Op. No. 96-058 .............................................................................11
vi
STATEMENT OF THE CASE
Nature of the The underlying case raises Texas Open Meetings Act
underlying (“TOMA”) violations and requests for declaratory and
proceeding injunctive relief based upon actions taken by the City of
Galveston’s city council in a closed, executive session
on February 23, 2012. Rec. tab 10 ¶¶7-8 pp.153-54.1
Respondent Hon. John Ellisor
122nd Judicial District Court, Galveston County
Trial court Indian Beach Property Owners Association, Inc.
proceedings at issue (“Indian Beach”) filed a motion asking the trial court to
conduct an in camera inspection of the executive session
recording, which the City opposed. Supp. Rec. tabs 1-2.2
The trial court granted the request. Rec. tab 8. The City
of Galveston submitted the closed session recording
(Rec. tab 9), and later filed a motion for summary
judgment seeking to dismiss Indian Beach’s TOMA
claim. Rec. tab 3. The trial court denied the City’s
summary judgment motion. Rec. tab 18.
The trial court issued a separate order finding the city
council exceeded TOMA’s limited statutory scope for
executive sessions, and ordered the City to produce the
recording of the executive session. Rec. tab 1.
Action from which The City challenges the trial court’s finding that the city
Relator seeks relief council exceeded TOMA’s narrow legal advice
exception, and its order to produce the closed session
recording.
1
Citations are to the record on appeal filed by the City, and are formatted as: Rec. tab # [pinpoint
page or paragraph]. Pinpoint page numbers are to the digital PDF page number.
2
Indian Beach files with this brief a short supplemental record containing the motion for in
camera inspection and the City’s response.
vii
ISSUE RESTATED
The trial court did not abuse its discretion when it reviewed the
pleadings and evidence and found the city council exceeded the
narrow scope of the Texas Open Meetings Act’s exception allowing
closed sessions to obtain legal advice; nor did the trial court abuse its
discretion by ordering the City to produce the taped recording of the
actions exceeding the open meetings exception for the Shorman
matter.
viii
STATEMENT OF FACTS
The underlying dispute arises from Judy Shorman’s permit application to
approve a general land use plan (“GLUP”) to allow her to build and operate a dog
kennel at her home. Rec. tab 10 ¶8 p.153. The crux of the original dispute was the
location of the kennel, as Shorman’s home is a lone tract in the middle of the
Indian Beach Subdivision, though it is not included within that subdivision’s plat.
Id.; Rec. tab 20 doc. 16-1 p.542 (map); Rec. tab 3 exh.2 p.33 (referencing Ms.
Shorman’s property as “a parcel of land that is within the Indian Beach
homeowners area.”).
Indian Beach Property Owners’ Association, Inc. (“Indian Beach”) objected
to Shorman’s GLUP application. Rec. tab 14 pp.201, 220-222 (verbatim minutes
from two Planning Commission meetings). After two public hearings, Galveston’s
Planning Commission denied Shorman’s application on January 24, 2012. Rec. tab
14 p.226; Rec. tab. 3 exh. 1 p.25. Under Galveston’s city ordinances, the Planning
Commission had “the power to make final determination on General Land Use
Plans.” Galv. City Ordinance Nos. 93-33, 98-52, 08-021 (attached in Appendix
A).3
Ms. Shorman appealed the denial to Galveston’s city council under City
3
Ordinance No. 93-33 is codified as a part of Section 29-40 of the City of Galveston Zoning
Standards (1991) (Appendix A). Proposed uses, such as for a dog kennel, must be based upon a
GLUP approved by the Planning Commission. Ord. Sec. 29-40(b) (Appendix A). Any “proposed
use” in a GLUP is subject to the Planning Commission’s review and approval.
1
ordinance 98-16. Rec. tab 20 doc. 16-1 p.532. The appeal was placed on the
council’s February 23, 2012 workshop and regular council agendas. Rec. tab 3 exh.
1 p.25 & exh. 4 p.57.
Legal opinions provided by Galveston’s city attorney show the city’s
established policy was to review Planning Commission decisions on GLUP
applications for abuse of discretion. Rec. tab 14 pp.229-36 (Planning
Commission’s decision should be upheld if it is not arbitrary or capricious; that is,
if there is some evidence supporting the decision); see also Rec. tab 14 pp.238-39
(“After further review, it remains our opinion that the standard of review is abuse
of discretion.”). This policy coincides with city ordinances giving discretion to the
Planning Commission in reviewing GLUP applications. See Galv. City Ord. 93-33
(Appendix A). It is also consistent with common sense, because if the Planning
Commission had no discretion to deny a GLUP application for the permitted use.
There would be no need to require a public hearing before the Planning
Commission; rather, approval could be left to staff action.
The council reviewed its agenda at its morning workshop on February 23,
2012. Rec. tab 3 exh. 2 pp.31-53.4 At the workshop, one council member asked
whether the Planning Commission could deny the GLUP application, since a dog
4
The City submitted three DVDs containing a video recording of the workshop meeting only.
The City’s 4:00 p.m. regular council meeting is available at
http://galvestontx.swagit.com/play/02212013-677 (see Rec. tab 4 ¶14 p.7), and the minutes from
the 4:00 p.m. regular meeting are at Rec. tab 3 exh. 5 pp.64-72.
2
kennel was listed as a “permitted use.”5 Rec. tab 3 exh. 2 pp.40-41. The council
member’s question included a caveat that if the GLUP included a permitted use
and there were no objections to the GLUP, could the Planning Commission deny
the application. Id. She then stated that the City’s written legal opinion actually
answers her question. Id. (referencing legal opinions available at Rec. tab 14
pp.229-39). In Ms. Shorman’s case though, there were objections to the GLUP.
Rec. tab 14 pp.195-226. The council member also asked about the treatment of
specific use permits. Rec. tab 3 exh. 2 p.41. While the City gave discretion to the
Planning Commission for GLUP applications, council retained authority to review
actions taken on specific use permits. See Rec. tab 3 exh. 3 p.41 (referencing
specific use permits that council has total discretion to approve or deny).
The City Attorney Dottie Palumbo responded to these questions, stating she
could provide factual information, but “really can’t answer the legal question out in
the open.” Rec. tab 3 exh.2 p.41. She explained that one of the conditions for
GLUP approval is whether the proposed usage is compatible with adjacent uses.
5
A permitted use is a potential way in which an owner can develop property. The long list of
permitted uses for Ms. Shorman’s property include constructing and operating a mortuary,
electrical substation, convenience store, or even an outdoor amusement park. Rec. tab 3 exh. 5
p.244. For obvious reasons, the city’s Planning Commission has the power to deny GLUP
applications where the use is not compatible with the surrounding area—such as an application
to place an outdoor amusement park in the middle of a subdivision. See generally Galv. Ord. 29-
40, including Ord. Nos. 93-33, 98-52, 08-021, 98-16 (Appendix A). Therefore, in a GLUP
application proposing to develop land to a “permitted use,” the Planning Commission has
discretion to consider compatibility with neighboring properties when deciding whether to grant
or deny it. See generally id.
3
Id. p.42. She then advised that “any questions that you might have on the line of
since it is listed as a use, what’s the legal implication, that would be better
answered in close[d] session.” Id. Ms. Palumbo made clear that before going into
closed session, all factual questions should be answered in the public meeting. Id.
pp.42-43.
Around noon, the council broke for executive session. See Rec. tab 3 exh.1
¶16 p.27. An audio recording of the closed session exists, and is the subject of the
order at issue in this proceeding. According to the City, the council discussed the
Shorman matter for approximately 22 minutes. The City does not contend that the
closed session was for the purpose of discussing pending or threatened litigation.
Rather, the City claims the closed session was necessary to obtain legal advice. No
one has explained why a closed session was necessary or appropriate when written
legal opinions stating city policy on council’s standard of review were already
publicly available. Rec. tab 14 pp.229-39.
At about 4:00 p.m., after the closed session, the council reconvened for its
public meeting. Rec. tab 3 exh. 5 p.64. At that meeting, the council heard from Ms.
Shorman and from members of the public, then voted to overturn the Planning
Commission’s decision. Id. pp.65-66.
Indian Beach filed the underlying lawsuit. On January 10, 2013, Indian
Beach moved for the trial court to conduct an in camera inspection of the executive
4
session recording. Supp. Rec. tab 1. The City objected to in camera inspection.
Supp. Rec. tab 2. A hearing was held on February 20, 2013. Rec. tab 20. On March
1, 2013, Judge Ellisor issued an order granting in camera review. Rec. tab 8 p.144.
The City then filed a motion for summary judgment seeking to dismiss
Indian Beach’s Texas Open Meetings Act or “TOMA” claim. Rec. tab 3. Indian
Beach responded, and the parties filed additional reply and surreply briefs. Rec.
tabs 14-17. The trial court considered the pleadings and evidence, and denied the
City’s motion for summary judgment—necessarily finding that a fact issue
precluded summary judgment on Indian Beach’s TOMA claim. Rec. tab 18 (order
denying summary judgment).
On December 10, 2014, the trial court issued an order stating that after its
review of the audiotape and draft transcript of the closed session, it found that the
city council’s closed session for the stated purpose of seeking legal advice
exceeded TOMA’s scope. Rec. tab 1 p.9. The court also found that a governmental
body may not invoke the attorney-client privilege under Section 551.071 to
convene a closed session but then discuss matters outside of that provision. Id. The
trial court ordered the City to produce the executive session recording. Id. This
mandamus proceeding followed.
5
SUMMARY OF THE ARGUMENT
The City asks the Court to vacate its order compelling disclosure of the
recording. The City’s requested relief necessarily includes the improper request
that this Court consider and reverse the trial court’s findings in a mandamus
proceeding. Not only did the trial court find that the city council exceeded
TOMA’s scope, the trial court also denied the City’s prior motion for summary
judgment which sought to dismiss Indian Beach’s TOMA claim. Before entering
the order at issue here, the trial court considered the pleadings and evidence on file,
conducted an oral hearing at which evidence was presented, and inspected the
closed session recording and transcript. The trial court then determined that the
City is not entitled to judgment as a matter of law on the TOMA claim and further
determined that the City violated TOMA in closed session. That is, it found city
council member discussions exceeded the scope of TOMA’s legal advice
exception, and discussed general policy considerations.
By going beyond legal advice, the council’s closed session violated TOMA,
and those discussions should have been public. The council’s discussions also
violated TOMA in another way: by privately discussing topics that were not
properly noticed for discussion in any meeting agenda, city council not only
exceeded the legal advice exception, but also violated TOMA’s notice
requirements.
6
Because sufficient evidence supports the trial court’s finding and order,
mandamus relief must be denied. In the alternative, if the Court holds the trial
court’s order compels production of recordings not relevant to the underlying
litigation, mandamus may be conditionally granted only in part, to allow the trial
court to reform its order and ensure production of only the recording’s relevant
portions.
7
ARGUMENT
The trial court did not abuse its discretion when it reviewed the
pleadings and evidence and found the city council exceeded the
narrow scope of the Texas Open Meetings Act’s exception allowing
closed sessions to obtain legal advice; nor did the trial court abuse its
discretion by ordering the City to produce the taped recording of the
actions exceeding the open meetings exception for the Shorman
matter.
A. Standard of Review and Applicable Law
1. Standard of Review in Mandamus Proceedings
Mandamus will only issue to correct a clear abuse of discretion. Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court abuses
its discretion if it acts without reference to any guiding rules or principles, or acts
in an arbitrary or unreasonable manner. In re Ford Motor Co., 165 S.W.3d 315,
317 (Tex. 2005); In re EPIC Holdings, Inc., 985 S.W.2d 41, 56 (Tex. 1998) (orig.
proceeding). Relators face a very heavy burden to show abuse of discretion, as they
must “establish that the facts and law permit the trial court to make but one
decision.” In re Epic Holdings, 985 S.W.2d at 56. Failing this, mandamus relief
must be denied.
An appellate court will not determine fact questions on mandamus, or
substitute its own judgment for the trial court’s judgment. Id. (citing Walker, 827
S.W.2d at 839). Where the trial court has resolved a factual issue, a reviewing
court must defer to that resolution. Id. Therefore, if “some evidence reasonably
8
supports the trial court’s decision,” no abuse of discretion has occurred and
mandamus cannot issue. Id. (citing Davis v. Huey, 571 S.W.2d 859, 862 (Tex.
1978)); see also GAF Corp. v. Caldwell, 839 S.W.2d 149, 150 (Tex. App.—
Houston [14th Dist.] 1992, orig. proceeding) (“Even if the reviewing court would
have decided the issue differently, it cannot substitute its decision for that of the
trial court unless the decision is shown to be arbitrary and unreasonable”).
2. The Texas Open Meetings Act
The Texas Open Meetings Act requires that “every regular, special, or called
meeting or session of every governmental body shall be open to the public, except
as provided by [TOMA].” TEX. GOV’T CODE § 551.002 (Vernon 2012). TOMA’s
scope is broad, and its exceptions are few, and are narrowly construed—this is
“consistent with the recommendation of Woodrow Wilson that ‘Government ought
to be all outside and no inside.’” Acker v. Tex. Water Comm’n, 790 S.W.2d 299,
300 (Tex. 1990) (citing Cox Enter., Inc. v. Bd. of Trustees, 706 S.W.2d 956, 958
(Tex. 1986) and quoting Woodrow Wilson, The New Freedom 76 (1961)); see also
City of Farmers Branch, et.al v. Ramos, 235 S.W.3d 462, 466 (Tex. App.—Dallas
2007, no pet.) (TOMA requires every meeting of a governmental body shall be
open to the public, with certain narrowly drawn exceptions). TOMA’s provisions
are mandatory, and must be liberally construed in favor of open government. City
of Farmers Branch, 235 S.W.3d at 466-67.
9
The Texas Supreme Court mandates ‘exact and literal compliance’ with
TOMA. Acker, 790 S.W.2d at 300.; see also City of San Antonio v. Fourth Court of
Appeals, 820 S.W.2d 762, 768 (Tex. 1991); Gardner v. Herring, 21 S.W.3d 767,
776 (Tex. App.—Amarillo 2000, no pet.); Markowski v. City of Marlin, 940
S.W.2d 720, 724 (Tex. App.—Waco 1997, writ denied). TOMA “simply does not
permit closed meetings…except where…specifically authorized.” Tex. Atty. Gen.
Op. MW-0578 at 3 (1982) (stating Texas Employment Commission cannot hold
closed sessions to review unemployment insurance benefits despite risk that
embarrassing information could be publicly disclosed); see also Tex. Atty. Gen.
Letter Op. No. 96-058 (testing committees may not use executive session to shield
test questions from public).
TOMA’s few exceptions are narrowly drawn—including the attorney advice
exception under section 551.071. See Acker, 790 S.W.2d at 300; Cox Enter., 706
S.W.2d at 958. Under Section 551.071, a governmental body may not conduct
private consultations with its attorney unless it seeks advice about (1) pending or
contemplated litigation or (2) a settlement offer, or (3) on a matter in which the
duty of the attorney to the governmental body under the Texas Disciplinary Rules
of Professional Conduct clearly conflicts with TOMA. TEX. GOV’T CODE §
551.071 (Vernon 2012). The City argues the third exception shields the executive
session from disclosure because the Council sought legal advice. The City does not
10
claim that any other exception applies to its private discussion about the Shorman
matter.
3. The City bears the burden of establishing privilege or a TOMA
exception.
Alleging an exception to TOMA is an affirmative defense that the
governmental entity bears the burden to prove. City of Farmers Branch, 235
S.W.3d at 466 (citing Olympic Waste Servs. v. City of Grand Saline, 204 S.W.3d
496, 504 (Tex. App.—Tyler 2000, no pet.)). Similarly, a party asserting a privilege
has the burden to establish that privilege. In re E.I. DuPont de Nemours and Co.,
130 S.W.3d 218, 223 (Tex. 2004).
The trial court found the City did not meet its burden, because it found the
council’s discussions violated TOMA’s scope and that general discussions of
policy unrelated to legal matters are improper under TOMA. Rec. tab 1 p.9. If
discussion at the closed session exceeded TOMA’s scope, the communications at
issue are not privileged. See Tex. Atty. Gen. Op. No. JC-0506 (2002) (if the
attorney-client privilege does not apply to an attorney-client consultation closed
under section 551.071 a court may find the governmental body violated TOMA);
see also Fairchild v. Lib. Indep. Sch. Dist., 466 F. Supp. 2d 817, 823 (E.D. Tex.
2006) (TOMA exception could not shield tapes that ISD had no expectation of
privacy in, where plaintiff was present at the meeting). Here, because the City did
not meet its burden to establish privilege, the trial court could not have abused its
11
discretion in ordering production of the closed session recording. See Olympic
Waste Servs., 204 S.W.3d at 504 (evidence simultaneously showed city did not
establish TOMA exception as an affirmative defense and that the city violated
TOMA).
B. Response to the City’s discussion on Indian Beach’s allegations
As an initial matter, Indian Beach must respond to the City’s statement that
Indian Beach’s pleadings “are based on incorrect law.” Br. at 17. This strong
pronouncement lacks any explanation or citation to case law or statute. Rather, the
statutes, case law, and relevant Attorney General opinions cited herein show that, if
the City Council exceeded the narrow TOMA exception for seeking legal advice
during the 22 minutes that they privately discussed the Shorman matter, their
closed session was illegal—just as Indian Beach alleges. See Acker, 790 S.W.2d at
300; Gardner, 21 S.W.3d at 776; Olympic, 204 S.W.3d at 503-04; Finlan v. City of
Dallas, 888 F. Supp. 779, 783 (N.D. Tex. 1995).
C. The trial court’s factual determination was not arbitrary or
unreasonable.
1. Procedures taken before or after a closed session cannot cure
TOMA violations that occur during closed session.
There is no dispute that the executive session qualified as a meeting of a
quorum of the city council under TOMA. “When a majority of a public decision-
making body is considering a pending issue, there can be no ‘informal’ discussion.
12
There is either formal consideration of a matter in compliance with the Open
Meetings Act, or an illegal meeting. Acker, 790 S.W.2d at 300.
The City states it complied with TOMA because a final vote occurred in
public hearing, and because it alleges it properly noticed the Shorman matter on its
agenda. The City’s argument implies that if it meets TOMA’s notice requirements
and makes a formal vote in public meeting, it can discuss anything it wants to in
executive session. In fact, the City’s attorney told the trial court that it does not
matter what was discussed during the executive session. See Rec. tab 20 p.319 (“I
think that this open meeting thing is very overworked. No one likes closed
meetings but sometimes they’re necessary. Regardless of what went on back there,
in this situation here I don’t think it matters what they did back there. There
was hours and hours of this thing outside talked about in the public. I was even
there for some of it.”) (emphasis added).
The argument that it does not matter what goes on in executive session as
long as there is some amount of deliberation or a final vote in public directly
contradicts TOMA and well-established case law on TOMA. See Acker, 790
S.W.2d at 300; Cox Enter., 706 S.W.2d at 959; Finlan, 888 F. Supp. at 783.
Procedural compliance with TOMA in areas such as notice or a final voting does
not, and cannot, excuse overstepping TOMA’s strict limitations on executive
sessions. See Finlan, 888 F. Supp. at 783 (if TOMA exception does not apply and a
13
closed meeting is held then the meeting violates TOMA regardless of whether it
complied with the statute’s procedural steps).
Executive sessions cannot be invoked to circumvent TOMA, merely because
an exception to TOMA is referenced. Cox Enter., 706 S.W.2d at 959. Instead,
“[t]he executive and legislative decisions of our governmental officials as well as
the underlying reasoning must be discussed openly before the public rather than
secretly behind closed doors.” Acker, 790 S.W.2d at 300 (citing Acts 1967, ch.
271, § 7, 1967 Tex. Gen. Laws 597, 598).6 In Acker, a permit application for a
wastewater treatment plant was considered in public hearing, and Acker alleged
that during a bathroom break from the public hearing, two of the three
Commissioners were overheard discussing the application and Acker’s costs
associated with a subdivision ordinance. Acker, 790 S.W.2d at 300. The two
Commissioners voted to deny the permit when the hearing reconvened. Id. The
Texas Supreme Court admonished this alleged behavior, stating that the law
requires a state agency’s decisionmaking in contested administrative cases (such as
in this case) to be open. Id. at 299. The Court then held that a meeting of a majority
of the Commissioners to privately discuss contested issues violates TOMA. Id. at
302. Because Acker was an appeal from summary judgment, the Court found the
Commissioners’ affidavits raised fact issues requiring a trial on the question of
6
Acker and Cox are two of the most-cited Texas Supreme Court cases on TOMA; the City fails
to cite either of them.
14
whether the Commissioners did discuss the permit application. Id. The City’s
suggestion that it does not matter what is discussed in executive session is flatly
contradicted by binding precedent.
2. TOMA’s legal advice exception is narrow, and any discussion
straying from legal advice is improper and illegal.
TOMA does allow for closed discussions for the very strict and narrow
purpose of obtaining legal advice. See Tex. Atty. Gen. Op. JM-100 at 2 (1983)
(attorney-client privilege applies under TOMA but “the communication must be
related to an opinion on law or legal services or assistance in some legal
proceeding.”). This exception is restricted to either a specific legal proceeding—
which does not apply here—or to “legal matters.” Id. Once the conversation strays
into other topics such as “[g]eneral discussion of policy” TOMA’s narrow legal
advice exception is exceeded. Id. Examples of communications that exceed
TOMA’s attorney-client exception are discussions of the merits of a proposed
contract, financial considerations, or other nonlegal matters during executive
session. Tex. Atty. Gen. Op. JC-0233 at 3-4 (2000); see also Olympic Waste
Servs., 204 S.W.3d at 503-04 (discussion about resulting contractual options
exceeded TOMA’s legal advice exception); Finlan 888 F. Supp. at 790 (“[i]t is
hard” to see how the “specific, limited, and narrow” real estate exception to
TOMA applies to “lobbying plans in the Texas legislature”); Bd. of Adjustment of
City of Univ. Park, Tex. v. Legacy Hillcrest Inv., L.P., No. 05-13-1128-CV, 2014
15
WL 6871403, at *5 (Tex. App.—Dallas 2014, no pet. h.) (finding executive
session did not exceed legal advice scope when the evidence showed that the
merits of the cases were not discussed).7
The City argues that privilege must attach “to the complete communication
between client and counsel.” Br. at 15. This broadly stated rule cannot be applied
to create a gaping hole in TOMA that would allow governmental bodies to shield
deliberations from the public using the guise of privilege. See Acker, 790 S.W.2d at
301 (holding officials cannot be allowed to meet and deliberate privately about
contested proceedings without eviscerating TOMA). Texas’ requirement that
government shall be open at all levels, including administrative decisionmaking,
requires governmental bodies to carefully consult with their attorneys so that their
discussions do not exceed the realm of legal advice. See City of San Antonio, 820
S.W.2d at 765 (TOMA’s purposes include enabling public access to, and
increasing public knowledge of, government decisionmaking). The city council
understood this (see Rec. tab 3 exh. 3 p.43), but the trial court found the council
did not restrict its discussions accordingly. Even case law that discusses only
privilege issues, and not TOMA issues, recognizes that the attorney-client privilege
cannot be used to shield or cloak nonprivileged communications. See Huie v.
7
The City cites Hillcrest in support of its argument. Hillcrest rested on evidence establishing that
the merits of the cases were not discussed in closed session. Bd. of Adjustment of City of Univ.
Park, 2014 WL 6871403, at *5. Here, the trial court found the city council’s discussions
exceeded TOMA’s scope and delved into general policy considerations. Rec. tab 1.
16
DeShazo, 922 S.W.2d 920, 923 (Tex. 1996). Here, when legal advice ends and
discussions turn to general policy or other nonprivileged matters, TOMA is
exceeded.
Texas’ treatment of providing only narrow substantive leeway for attorney-
client communications in closed session is consistent with other states’ treatment
of the attorney-client exception to public meetings. See Tex. Atty. Gen. Op. JC-
0233 at 4 (2000) (citing City of Prescott v. Town of Chino Valley, 803 P.2d 891,
896 (Ariz. 1990) for its statement that legal advice does not include discussing
merits of enacting legislation; Underwood v. City of Presque Isle, 715 A.2d 148
(Me. 1998) holding that a zoning board cannot deliberate on the merits of an
application in closed session; and People v. Whitney, 578 N.W.2d 329, 337 (Mich.
App. 1998) holding that a discussion of a legal opinion in a closed meeting must be
limited to legal advice and does not authorize discussion of public policy).
The City cites Tex. State Bd. of Pub. Accountancy v. Bass in support of its
argument. Tex. State Bd. of Pub. Accountancy v. Bass, 366 S.W.3d 751 (Tex.
App.—Austin 2012, no pet.). That case involved review of administrative
disciplinary proceedings against Enron accountants, and held against the
accountants. Id. at 752. In Bass, the parties filed cross-motions for summary
judgment, and the Austin Court of Appeals considered whether Bass’ proof of a
TOMA violation related sufficiently to his requested relief to void the Board’s
17
vote. Id. at 762-763. Bass supports that, if a governmental body convenes a closed
session to obtain legal advice, the communications must be related to an opinion on
law or legal services, or assistance in some legal proceeding. Id. at 759. But Bass is
an outlier among TOMA cases, and among summary-judgment cases, in that it (1)
considered discussions in a public meeting as “conclusive” evidence on summary
judgment to defeat a claim that the board violated the scope of a separate, closed
executive session (its finding was not tested in any petition for review), and in that
it (2) states to establish that the Board’s orders violated TOMA, the accountants
had to show that an actual vote or decision was made in closed session. Id. at 762.
The second statement cannot be read or applied on its own without contradicting
TOMA and Texas case law on TOMA. TOMA’s narrow exceptions can be
violated in ways other than taking a final vote in closed session. Several cases and
Attorney General opinions provide that exceeding the scope of a TOMA exception
violates TOMA. Gardner, 21 S.W.3d at 776 (evidence supported that TOMA’s
section 551.071 exception was exceeded); Finlan, 888 F. Supp. at 783; Tex. Atty.
Gen. Op. JM-100 at 2. Bass appears to rest its holding on a link between the
TOMA allegations in that case and the Enron accountants’ requested relief. It
cannot control here, because the ultimate relief is not at issue here. The question in
this proceeding is whether the trial court abused its discretion in its order,
including in its finding that the city council improperly exceeded TOMA in closed
18
session. The trial court’s order is supported by ample evidence; the court did not
abuse its discretion.
3. The trial court’s order determined facts that cannot be challenged
on mandamus.
The trial court’s determination of any fact is not reviewable by this Court on
mandamus. The trial court reviewed the recording and transcript of the closed
session, and found that (1) during closed session, the council’s discussions
exceeded the stated purpose of seeking legal advice and (2) a governmental body
may not invoke the attorney-client privilege under Section 551.071 to convene a
closed session but then discuss matters outside of that provision. Rec. tab 1, p.9.
Apart from the closed session recording, other evidence indicates that the
council strayed from pure legal advice, as TOMA requires. This makes sense,
because if no evidence existed other than the closed session recording, Indian
Beach would never have known to bring a suit alleging a TOMA violation. The
additional evidence includes:
- Evidence submitted at the hearing on Indian Beach’s motion for
court review of closed executive session. Hearing Exhibits 5D and
5E are the Planning Commission’s verbatim minutes concerning
the Shorman GLUP application, and hearing exhibit 6 includes Ms.
Shorman’s appeal, the staff report, 20 pages of handouts including
the GLUP site plan, and the February 23, 2012 regular council
meeting minutes. Rec. tab 20 exhs. 5D, 5E, 6 at docs. 16-1 & 16-2.
- All evidence submitted either for or against the City’s summary
judgment motion. The summary-judgment evidence includes the
city council’s workshop agenda, transcript and video, the 4:00 p.m.
19
council agenda and meeting minutes (Rec. tab 3 exhibits 1-6), the
verbatim minutes from the two Planning Commission meetings,
Ms. Shorman’s GLUP appeal, legal opinions issued by the City
Attorney regarding the appropriate standard of review in GLUP
appeals to city council, and applicable City ordinances. Rec. tab 14
at pp. 187-258 (the exhibits to Indian Beach’s response to
summary judgment are not tabbed in the mandamus record that the
City provided to the Court). The trial court considered this
evidence and all pleadings on file, and denied the City’s summary
judgment motion on June 30, 2014—well before it issued the order
that is the subject of this proceeding—necessarily finding that
Indian Beach’s TOMA claim did not fail as a matter of law. See
Rec. tab 18.
- The length of the closed session deliberation. According to the
City, the council discussed the Shorman matter in closed session
for 22 minutes. The sheer length of this discussion indicates the
council discussed more than pure legal advice. See Gardner v.
Herring, 21 S.W.3d 767, 771 (Tex. App.—Amarillo 2000, no pet.).
In Gardner, the court held that summary judgment dismissing a
TOMA violation was not proper, as some evidence showed a
quorum of the board talked outside of a public hearing “for about
twenty minutes,” the subject at least partially concerned Gardner’s
lawsuit against Herring individually, and one of the board
members responded to the statement about the lawsuit. Id. Gardner
held that, “given the time period which lapsed,” the subject of the
lawsuit, the fact that a quorum of the board was present, the
“potential affect of the suit upon the district’s official acts,” and the
fact that some response to the lawsuit disclosure was made, one
could reasonably infer that a verbal exchange about a matter of
public business occurred. Id. The Gardner court noted its holding
complied with the Texas Supreme Court’s explicit instruction to
apply TOMA in an exacting and literal manner. Id. at 772 (citing
Acker, 790 S.W.2d at 300).
Here, the length of the closed session discussion on the Shorman
matter is especially important, because the City only urges a legal
advice exception, and does not contend that a closed session was
needed to discuss pending or threatened litigation, which could
entail a more lengthy discussion of facts, pleadings, or allegations.
20
Instead, the City’s attorney made clear that the council members
should discuss all factual questions during the public workshop
(Rec. tab 3 exh.2 p.42-43), which indicates that any legal advice
sought in closed session should be targeted—and short.
The subject matter of the closed session—purportedly seeking
legal advice relating to the council’s standard of review—also begs
the question why that issue must be addressed in closed session,
especially where the City already possessed legal opinions as part
of the public record that set out the City’s established standard.
Rec. tab 14 pp.229-239; see also Rec. tab 3 exh. 2 p.41 (council
member stating legal opinion actually answers her question).
- Comments during the workshop meeting. At the workshop
meeting, one council member asked a question that prompted the
city attorney to state that legal advice must be given in closed
session. Rec. tab 3 exh.2 p.42-43. The question was whether the
council could review Ms. Shorman’s GLUP appeal in the same
way they would review a specific use permit. Id. During the
workshop, the council was advised that it must review for an abuse
of discretion. Rec. tab 3 exh.2 p.34 (“..what’s before you is
standard of review. And I’m not sure if our city attorney wants to
add anything here; but what you’re looking at is what is a use [sic]
of discretion…”). That advice is consistent with written legal
opinions from the City’s attorneys, which were provided to the
during the workshop meeting. Rec. tab 14 pp.229-239. Considering
the question posed during the workshop, the established standard
of review, and the length of the closed deliberations, there is a
clear indication that the conversation strayed into other topics such
as general discussions of policy—and therefore improperly
exceeded TOMA’s scope. See Tex. Atty. Gen. Op. JM-100 at 2
(1983); see also Rec. tab 1.
Therefore, even apart from the closed session recording, the trial court had ample
evidence on which to base his conclusion that the council exceeded its scope of
allowable discussion during closed session.
21
Even if this Court would have found differently from the trial court, the trial
court’s order cannot be overturned unless the City establishes Judge Ellisor could
only have reached one decision. Walker, 827 S.W.2d at 839; Diocese of Galveston-
Houston v. Stone, 892 S.W.2d 169, 174 (Tex. App.—Houston [14th Dist.] 1994,
orig. proceeding); GAF Corp., 839 S.W.2d at 150; see also In re La. Tex.
Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 689 (Tex. App.—Houston [14th Dist.]
2011, orig. proceeding) (denying petition for writ of mandamus because trial
court’s implied finding supported order denying motion to disqualify counsel
“Because the record supports the trial court’s implied finding that relators waived
their right to seek disqualification, we deny the petition.”).
In Killam Ranch Properties, Ltd. v. Webb County, allegations were made
that the county improperly convened an executive session to negotiate the sale of
county property. Killam Ranch Properties, Ltd. v. Webb County, 376 S.W.3d 146,
157 (Tex. App.—San Antonio 2012, pet. denied) (en banc op. on reh.). Killam
appealed the denial of his summary judgment motion, in support of which he had
submitted the meeting minutes from the public meeting. Id. at 158. The minutes
indicated the executive session convened on issues related to sale of the property,
and was requested pursuant to TOMA’s attorney consultation and real estate
exceptions. Id. The Fourth Court of Appeals held Killam’s evidence raised a fact
issue on whether the privilege applies, as the county had alleged. Id. Killam
22
supports that the question of whether TOMA was exceeded in executive session is
a fact question for the court. See also Walker, 827 S.W.2d at 839; Diocese of
Galveston-Houston, 892 S.W.2d at 174.
In another mandamus case involving privilege, this Court refused to disturb
the trial court’s factual finding as to whether a party intended to waive the
attorney-client privilege through production. See In re Carbo Ceramics Inc., 81
S.W.3d 369, 376-77 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding).
The facts there showed that “the trial court could have determined, in her
discretion, that Carbo intended to waive its claim of attorney-client privilege….”
Id. Therefore, the court did not abuse its discretion in ordering production. Id.
Because the trial court’s order is supported by evidence, the trial court could
not have abused its discretion and mandamus must be denied.
4. The City’s characterizations of the recording’s contents should
not be considered.
The City argues that the trial court’s fact finding that the council improperly
engaged in a general discussion of policy unrelated to legal matters “is not the
case.” Br. at 18. This appears to attack the trial court’s determination of fact from
its review of the executive session recording. This is improper on mandamus. It
also appears to invite this Court to review the closed session audiotape and to
substitute its own judgment for the trial court’s—which is also improper in a
mandamus proceeding. Id.
23
Because Indian Beach has never had the opportunity to review the recording
of the closed session, it has no way to respond to the City’s characterization of the
contents of that recording. The City, at several places in its brief, states facts with
no citation that purportedly support its disagreement with the trial court’s findings
about the recording’s contents. For example, the City argues that the council
discussed a legal matter, and did not make a “final vote” in the closed meeting. See
Br. at 18. Throughout its brief—including at pages 5, 8, 9, 18, and 22—the City
makes conclusory statements that it “strictly complied” with TOMA by
deliberating or consulting with its attorney concerning the law. Indian Beach is
deprived of any ability to respond to these arguments because it has not reviewed
the closed session recording. Therefore, Indian Beach asks the Court not to
consider any of the City’s arguments about what the recording does, or does not,
include. See, e.g., Markowski, 940 S.W.2d at 725 (although appellate court did not
consider the executive session recording as evidence it did consider the trial court’s
finding about whether TOMA was exceeded since trial court reviewed the
recording).
Should the Court consider the City’s argument about the contents of the
recording, it is clear that any private discussion in the executive session that
strayed from legal advice is improper and unauthorized under TOMA. This is what
the trial court found in its order, which ample evidence supports..
24
D. Extraneous recordings are not sought.
Indian Beach asked the trial court to review the executive session recording
to determine whether the city council’s actions relating to the Shorman matter
exceeded TOMA’s scope. The trial court found the council did exceed TOMA’s
requirements relating to Shorman during closed session. Of course, Indian Beach
only seeks the portion of the closed session relevant to this litigation. If this Court
finds the trial court’s order would require disclosure of information not related to
the underlying case, the Court may instruct the trial court to reform its order to
require production of only the portions relevant to this case. See In Re Geico Gen.
Ins. Co., No. 14-06-00423-CV, 2006 WL 3511694, at *2 (Tex. App.—Houston
[14th Dist.] Dec. 7, 2006, orig. proceeding) (denying mandamus relief with respect
to the amount of fees awarded but conditionally granting mandamus in part to
direct trial court to reform its order and omit the requirement to pay fees within a
certain time period).
E. If the council strayed from its posted agenda topic, it violated TOMA’s
notice requirements.
The City must give written notice of the date, hour, place and subject of each
meeting held by Council. TEX. GOV’T CODE § 551.041 (Vernon 2012). The notice
provided by the governmental body must be sufficiently specific to alert the
general public to the topics to be considered at the upcoming meeting. Cox Enter.,
706 S.W.2d at 959; City of Farmers Branch, 235 S.W.3d at 466-67.
25
No notice of executive session for the Shorman matter was posted. Rec. tab
3 exh. 1 pg. 25 & exh. 4 p.57. The council’s then-interim City Attorney stated at
the workshop meeting that Government Code Section 551.071 allows the mayor to
announce a closed session in order to receive legal advice “because this is a
properly posted agenda item.” Rec. tab 3 exh.2 p.42 (transcript of workshop
meeting). The notice of meeting for February 23rd’s workshop and 4:00 p.m.
meetings included this statement:
Public hearing and consider for action the appeal (12PA-10) of the
City of Galveston Planning Commission’s failure to approve Planning
Case Number I IP-137 relating to a request for a General Land Use
Plan in conjunction with the development of a dog kennel in a
Planned Development (PD) zoning district. Property is legally
described as Abstract 121. Hall & Jones Survey. Tract 69-1, 4,000
Acres. in the City and County of Galveston. Texas, and more
commonly known as 18601 Warrior Road. Appellant: Judy Shorman.
Applicant and Property Owner: Judy Shorman.
Rec. tab 3 exh. 1 pg. 25 & exh. 4 p.57. The legal advice must pertain to the posted
agenda item—Ms. Shorman’s appeal. It may not delve into general procedures
concerning GLUP appellate standards of review, or into nonlegal topics such as
deciding not to follow established standards of review.
If the executive session discussions exceeded the legal advice exception (as
limited to the public notice for the Shorman matter), as the trial court found, then
TOMA’s notice requirements were also violated. For example, the City did not
publish any notice of an intent to hold a closed session to generally discuss or
26
modify the City’s policy on the city council’s standard for reviewing GLUP
applications, or to discuss City Ordinances dealing with the Planning
Commission’s discretion in GLUP applications, or whether the City’s policy
should be changed to remove the Planning Commission’s discretion in determining
GLUP applications.8
Whether proper notice was given is typically a fact issue. Tex. Atty. Gen.
Op. JC-0057 (1999), Tex. Atty. Gen. Op. DM-98 at 4 (1992). Notice can be
insufficient as a matter of law—for example, where no notice is provided at all, or
in the case of the Cox Enterprises, Inc. v. Board of Trustees, general statements
about “personnel” or “litigation” or “real estate matters” were too general to
provide adequate notice under TOMA that a topic was to be discussed in closed
session, “particularly where the subject slated for discussion was one of special
interest to the public.” Cox Enter., 706 S.W.2d at 959. Based upon the trial
court’s finding that the discussions at closed session exceeded the legal advice
exception, the meeting’s notice was insufficient.
Notably, at page 9, the City describes the closed discussion as pertaining to
the city council’s discretion to grant or deny Shorman’s permit application—this
8
Pursuant to Section 12 of Article II of the Charter of the City of Galveston “the Council shall
legislate by ordinance only and the enacting clause of every ordinance shall be ‘Be It Ordained
by the city council of the City of Galveston […]’. Every proposed ordinance shall be in writing
and shall be read, either in full or by descriptive caption, in open meeting, before any vote is
taken thereon, provided, however, that any proposed ordinance that is read by descriptive caption
only shall be available for public inspection in the office of the City Secretary not less than
seventy-two (72) hours prior to adoption […]”. See Appendix B.
27
description alone belies the improper scope of the executive session, since council
did not have before it a motion to grant or deny the permit application. Instead,
council was faced with (and noticed on the agenda) an appeal from the Planning
Commission’s action; it was asked to review the Planning Commission’s action
with respect to the requested GLUP application for abuse of discretion. Because
the city council violated TOMA’s notice provisions, the extraneous executive
session discussions should not have occurred, and trial court could not have abused
its discretion. Mandamus should be denied.
CONCLUSION AND PRAYER
The trial court properly found that Galveston’s city council exceeded its
statutory authority to meet in closed session. With that finding in mind, the court
properly ordered the City to produce the executive session recording. Indian Beach
therefore prays this Court deny the City’s request for mandamus relief. In the
alternative, mandamus may be conditionally granted only in part to allow the trial
court to reform its order to expressly omit production of any portion of the
recording that does not relate to the Shorman matter, as Indian Beach only seeks
closed session deliberations that relate to the underlying proceeding. Indian Beach
respectfully requests all other relief to which it is entitled, whether at equity or law.
28
Respectfully submitted,
By: /s/ Angie Olalde
Andrew J. Mytelka
State Bar No. 14767700
Stephen G. Schulz
State Bar No. 17848300Angie Olalde
State Bar No. 24049015
GREER, HERZ & ADAMS, L.L.P.
2525 South Shore Blvd., Ste. 203
League City, Texas 77573
(409) 797-3200 (Telephone)
(281) 538-3791 (Facsimile)
COUNSEL FOR INDIAN BEACH
PROPERTY OWNERS’
ASSOCIATION, INC.
29
CERTIFICATION
I hereby certify that I have reviewed this Response, and I conclude that
every factual statement therein is supported by competent evidence included in the
appendix or record.
/s/ Angie Olalde
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, I certify that there are 7,094
words in this document, excepting those portions of the brief listed in Rule
9.4(i)(1), as calculated by the word count feature of Microsoft Word 2010, which
was used to prepare this document.
/s/ Angie Olalde
30
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing document was served pursuant to Texas
Rule of Appellate Procedure 9.5 on the 9th day of January, 2015 upon the
following counsel of record:
John J. Hightower Via Electronic Service and via e-mail
Scott Bounds
Eric C. Farrar
OLSON & OLSON, L.L.P.
Wortham Tower, Suite 600
2727 Allen parkway
Houston, Texas 77019
Counsel for Relators
Robert Shattuck, Jr. Via electronic service & e-mail to rvshattuck@aol.com
rd
1018 23 Street
Galveston, Texas 77550
Attorney for Judy Shorman
Honorable John Ellisor Via CMRRR
122nd Judicial District Court
600 59th Street, Room 4304
Galveston, Texas 77551
/s/ Angie Olalde
Angie Olalde
31
No. 14-14-01005-CV
In the Fourteenth Court of Appeals
Houston, Texas
CITY OF GALVESTON,
Relator
vs.
INDIAN BEACH PROPERTY OWNERS’ ASSOCIATION, INC.,
Real Party in Interest
Original Proceeding on Petition for Writ of Mandamus
from the 122nd Judicial District Court
Galveston County, Texas
APPENDIX TO
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
Appendix A Portions of Section 29-40 of the City of Galveston
Zoning Standards (1991), including Ordinances 93-33,
98-52, and 08-021
Appendix B Article II, Section 12 of the Charter of the City of
Galveston
1
APPENDIX A
ORDINANCE NO. 93-33
AN ORDINANCE OF THE CITY OF GALVESTON, TEXAS, AMENDING CHAPTER 29,
"PLA!'WING AND DEVELOPMENT" OF THE CODE OF THE CITY OF GALVESTON,
1982, AS AMENDED, BY AMENDING 'IHE ZONING STANDARDS, 1991, TO ALLOW
THE PLANNING COMMISSION TO MAKE FINAL DETERMINATION ON GENERAL LAND
USE PLANS; PROVIDING FOR A PENALTY CLAUSE; MAKING VARIOUS FINDINGS
AND PROVISIONS RELATED TO THE SUBJECT.
WHEREAS, the Committee on Efficiency and Economic
Development asked city staff to review ordinances that may be
amended to remove unnecessary difficulties, obstacles or delays
from the permitting and board review process: and
WHEREAS, the Department of Planning and Transportation
and the Planning Commission have considered and recommended
amendment of the zoning ordinance to provide that the Planning
Commission shall have authority to approve, approve with conditions
or modifications or deny a Specific Use Permit or a General Land
Use Plan; and
WHEREAS, the City Council of the City of Galveston has
found that it would be beneficial to grant the Planning Commission
the power to make final determination on General Land Use Plans;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF GALVESTON, TEXAS:
SECTION 1; The findipgs and recitations set out in th6
preamble to this Ordinance are found to be true and correct and
they are hereby adopted by the City Council and made a part hereof
for all purposes.
SECTION 2. That Section 29·<\0(b) 1 (o) and (d) of the
Zoning Standards 1991 of the Code of the City of Galveston, 1982,
as amended, be and are hereby amended to read as follows:
"Section 29-40: PD, PLANNED DEVELOPMENT
DISTRICT
(b) Any proposed use in the Planned
Development District (PD) shall be based upon
a General Land Use Plan approved by the
Planning Commission.
(c) There will be a public hearing held by
the Planning Commission for the purpose of
considering such proposed General Land Use
Plan.
Notice of such hearing shall be published
at least ten (10) days prior to the hearing
before the Planning Commission and notices
mailed to all parties affected within 200 feet
of the site.
443
SECTION 4. That it is hereby declared to be the
intention of the City Council that the sections 1 paragraphs 1
sentences/ clauses and phrases of this Ordinance are severable and 1
if any phrase/ clause/ sentence/ paragraph or section of this
Ordinance should be declared invalid by the final judgment or
decree of any court of competent jurisdiction/ such invalidity
shall not affect any of the remainingphrases 1 clauses 1 sentences/
paragraphs and sections of this Ordinance 1 since the same would
have been enacted by the city council without the incorporation in
this Ordinance of any such invalid phrase 1 clause 1 sentence 1
paragraph or section in conflict herewith are repealed to the
extent of such conflict only.
SECTION 5. That all Ordinances or parts thereof in
conflict herewith are repealed to the extent of such conflict only.
SECTION 6. That in accordance with the provisions of
Sections 12 and 13 of Article l l of the City Charter this Ordinance
has been publicly available in the office of the City S.$orti ve review
process by City Staff and a public notice and comment process for larger scale proj~cts by
th~ Planning Commission; and.
WHEREAS, the proposed amendments confom1 to the goals of the
Comprehensive Plan by improving the application roview process und providing
infonnation in an expeditiO>lS manner. The process will provide approvals for all
development that conforms to Section 29-107, "Height und Density Dewlopment Zontl.''
\\Swell as all other tlpplicable codes, standards. and the Comprehensive Plan; and,
WHEREAS, the Planning CL1mm!ssion. at a special meeting on April 15, 2008
recommended appmval of Planning Case OSP-35 with certain changes and,
WHEREAS, the City Council alter public notice and hearing finds it in the. public
lnter~st to ttpprvvc Planning Case OSP-35 Ill in the preamble t(l this
On.lin~nce ure tbund lo b~ IJ\1~ nnd corr~'Ct and they ~re h~r~by udopt<:d by the City
C\1uncil and made a part hereof t'or ~ ll purpooes.
~ECTJON 2. The• Galveston !.oning St~mdi!rds, s~ction 29-88: "Siw Plan
Approval"i~ lh~rehy amended to r~ad 1md provide a~ follow:;:
Se~tilln 29·88; SITE PLAN APPROV.·\L
No Building Pennit shall be issued for the c-onstruction, er\lction or
alterathm l,)f a structure or building in any zoning district where. site. plan
approval is required by this Code until said site plan has heen submitted
and approved by the Department of Planning and Community
Development or by whatever it may be known and until all fees have
been paid, including bnt not limited to, fees r\:quired by section 29-2!2.
(a) PU!vose
To provide a prot:ess by which the staff of the Department of Plarming
and C(Jmmunity Development _llnd the Planning Comm\§~)on will
review, app~ove. approve with conditions, or disapprove development
proposals: provide zonlng and land t1se d~temlination ktters liS
required and provide letters of encroactunent.
(b) Intent
To facilitate the pe1mit process for the construction. ere~:tion or
altel'ation of u ~tructure or building in any ;r.oning district where the
review by the staff of the Department of Plruming ru1d Community
Development is required. Such review shall include a detennination
of the project's impact on adjoining properties, traffi(), noise, use
intensity, und on and off street parking; the project's application of
design guidelines, exis-ting neighborhood plans, or comprehensive
plan; the project's relationship to he::altl1, safety, morals, or general
welfare of the public; and lhe project's efforts to protect l\lld preserve
l1istorical, cultuml and environmental plac-es (tnd areas.
To provide the pltbclic 1\-ith dticient respon~es relating to the City of
Galveston Zoning Standards and Zoning Districts.
(c) The following requires Site Plan Approval by the Department of
Planning and Communit>' DevelopmenT:
(1) B.eac-hfront Construction Certi.ficate and Dune Protection Permit
50-feet north of dune prot~'Ction line;
(2) Dune protectior1 pem1it application;
(3) License to (.lg~- Non-Pennanent: and,
t4J Design approvals within Historic District.
(d) The following requires Department of Pl~1nning and Community
Development stnff actilJil:
(J) Zoning letter ,~.:..JL~usic ldter for zoqjpg classjtkation.itn.\l.liJ!l_q
.\1~..illlb:;
(2) btmEI-llttifa``lioo ZlllUlli.LLd:\<;'£.~,;_.Jl detuillil~llihall submit the following
informs ~md ~gress provkles for 1h~
..:I'J·1cknt and ~afe movt·rn~nt of t:mffk LU'ld p~ople.
(3) Suffkient landscaping und scre.,>ning exists so that the proposed
development will be in hamwny with and shall. not be harmful to
adjacent properties.
(4) llle property is adequarely and propel·ly drained.
(5) Hours of operation will ntH affect adjacent residential
development.
(6) All proposed signs must be in harmony with adjacent
dcvelopmt.~nt and may not be in tJXcess of actual need.
(7) Uses that may be classified as Commercinl Otitdoor Amusement
facilities require a public announcement and written notice to the
owners and occupants of real propilrty within ttu·ec hundred feet
(JOO') of Uie property on which the use ts proposed. Witllin t~n
days of the onnouncement und mltit\cation ~ny owner or
occupant 11f property within the City may request that the matter
be presented to the Planning Commission for approval.
(i) Elmroipg Commission Review of Planned Development IP.Qll~l.i.Q.n
29-40:
(1) In accotdancc with ..,llection 29-40: Planned Deve!Qpill£:!.1!
District, ony proposed use .in..JI],Q.J?.[®.JJ£d Development (PO)
Z:onhg .District shall be based upon a Ge.neral Land Use Plmb
which shall include n detailed si.t12..11lan Jlli.rsuant to Section 29-88
Ul.lll1
(2) J:!w'~.l:Yill be a Public Hearing lwld ~Y.!.~J£..!:!.\l.!ltJi.!.lg Commission
.fu.!:....\.!JQJmmose of considering such pt0.12Qfled Genera.! Land 1.!§.~
Plan, as (kscribed in Section 29-40.
(j) Planning Com.misslon R~iew of Height und Density Development
Zone CH!2QZl Scction2~:) 07:
(I) lu accordtmce with Section 29-107: Height. ond Qensity
J)ovelopment Zoll4.J.Li'ler nq_tice and hearing, the Planning
.Commission sh.,...l\r£.J.!.. d£!llwined
by
r<;.$1J.I!..!J.$YLJW.O.L_.applicable .. _ City DeJb1£!!!1£!JlLJ!.\!!io.g
wm!i cat.i.Q.!l1)9li.t;.~_Jl[.Q.!;.'m,,
(2) I.he Planning Commission shall not approve the prqposed
projeQt i.fi.UJoes Jl\lt£QI!ll?lY \Vith the it£!J!S !iste_9..lJ.l_,'i\;,£A9l!.L!J
above,
fh-l ..(kl Appeal
h1 the event the applicant lor ·a Building Permit does not agree with
tile decision of the Department of Planning and Community
Dewlopment, o.r by whatev~:r it may be known, the matter m<~Y be
pr~sented to the Pla1U1ing Conm1ission. with appeal to the City
Cmmcil, The Cou11cil's decision shall be fillal.
SECTION 3. It is hereby uedared to be the intention of the. City Council that the
sections, paragraphs, sentences, clrt\Jses and phrases of this Ordin.'mce are severable an~,
if any phras~. clause, ~entencc, paragraph, or section of this Ordinance should be declared
invalld by the final judgment or decree of any coult of ''ompeteut jurisdiction, such
invalidity shall not affect any of the r~maining phrases, clauses, sentence, paragraphs and
sections of this Ordinance.
SECTION 4, All Ordinances or parts tlwrcof in contlict herewith are r1;1pealed to
the extent of scuch contlict only.
SECTION 5, In accordance with the provisions of Section J 2 and 13 of Article
11 of the City Charter this Ordinance has been publicly av~ilable in tbe otrlce of th~ City
SecNtmy for not kss than 72 hours prior to its adoption; that this Ordinance may be ti,Jfld
and published by descriptive caption only.
SECTION 6. This Ordimu1'e shall be and bucom~ em~clive Cron1 and after its
adoption and publication in accordunce with the provisions of th~ Ch,mer of th~ City nf ·
Gulv``tnn.
I. Bmb11ra S. Lawrence, Secretary of the City Council of the City of Galveston. do
hereby certlt'y that tbe foregoing is a true and correct copy of till Ordinance t1doptt!d by
tit<: City Council of the City M Galveston `` a regular meeting held on the 24 1h day of
,\pril, ::wos. \IS the same app.:urs in the r~cnrds of this ot'tice.
J"-J TESTIMONY WHERF!OF. I subscribe my uame her~:to ottkinlly und~r the
..:orpomte seal of the City of 0<11v~ston this~ day of }Z~u.,,C,_,. __ . 2 .lc~?_%_.
,!"'·
"-.:::;.7 ./ , ; •..,.::!
,}``~.~­
Secretary for the City Council
of the City of Oatwsi1m
451
ORDINANCENO. 98-16
AN ORDINANCE OF THE CITY OF GALVESTON~ TEXAS, AMENDING THE
ZONING REGULATIONS 1991" OF "THE CODE OF THE CITY OF
GALVESTON 1982~ AS AMENDED" BY PROVIDING FOR APPEALS OF
GENERAL LAND USE PLANS TO Cfl'Y COUNCIL; PLANNING CASE 98P-40;
PROVIDING FOR FINDINGS OF FACT AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the "Zoning Regulations 1991" requires individuals who wish to
develop within a Plmmed Development Zoning district to obtain the Galveston Planning
Co-q:unission's approval of a General Land Use Plan; and
WHEREAS, the "Zoning Regulations 1991" do not provide a mem1s whereby
a11 aggrieved party may appeal the Platming Comrnission' s decision regarding a general
land use plan; and
WHEREAS, the City Council deems it in the public's interest to provide a means
whereby persons aggrieved by the denial or approval of a general land use plan may
appeal to the City Council; and
WHEREAs, on March 3, 1998, the Planning Com1nissionvoted to reconuneud
approval of Case 98P-40;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
THE CffY OF GALVESTON, TEXAS:
SECTION 1. The findings and recitations set out in the prea:tnble to this
Ordinance are found to be true and cou-ect and they are hereby adopted by the City
Council and made a part hereof for all purposes.
SECTION 2. Section 29-40, "PD, Planned Development District" of ''The
Zoning Standards 1991" of "the Code of the City of Galveston 1982, as atnended" is
here by amended by adopting a new sub-section {f) to read and provide as ib ll ows:
"(f) Appeal-- General Laud Use Plan.
Any person aggrieved by the Planning Commission's approval or
disapproval of a general land use plan in the Planned Development
District may file an appeal to the City Council. Such appeal must be
filed with the Department of Planning and Transportation no Iater
than ten (1 0) working days from the date of the Platming Commission's
decision, The City Council may uphold or reverse the decision of the
Planning Commission in which event, the City Council's decision shall
be final. In addition, the City Council may refer the matter back to the
Planning Cmmnission with specific instructions to considerne\v
information. In such event. the Planning Cmiunission shall reconsider
452
SECfiON 4 All Ordinances or parts thereof in conflict herewith are repealed to
the extent of such conflict only.
SECTION 5. In accordance with the provisions of Section 12 and 13 of Article
II of the City Charter this Ordinance has been publicly available in the office of the City
Secretary for not less than 72 hours prior to its adoption; that 1his ordinance may be read
and published
by descriptive caption only.
SECTION 6. This Ordinance shall be and become effective from and after its
adoption and publication in accordance with the provisions of the Charter of the City of
Galveston, Texas.
"*****************"*******"******
Approved by the City Cotmcil at its regular meeting held on the 26th day of
March, 1998.
ecretarv for the Citv Com1eil of
the City of Galveston, Texas
I
APPENDIX B
ARTICLE II. ‐ THE COUNCIL
Section 12. Procedure to Enact Legislation. The Council shall legislate by ordinance only, and the
enacting clause of every ordinance shall be "Be it Ordained by the City Council of the City of Galveston."
All ordinances shall be submitted to the City Attorney for the City Attorney's approval before adoption and
unless approved by the City Attorney, in writing, the City Attorney shall file with the City Secretary the City
Attorney's written legal objections thereto. Every proposed ordinance shall be in writing and shall be read,
either in full or by descriptive caption, in open meeting before any vote is taken thereon, provided,
however, that any proposed ordinance that is read by descriptive caption only shall be available for public
inspection in the office of the City Secretary not less than seventy-two (72) hours prior to adoption. All
ordinances, unless otherwise provided by law or this Charter or by the terms of such ordinance, shall take
effect immediately upon the final passage thereof.
(Ord. No. 77-25, § 3, 4-4-77; Ord. No. 91-95, § 4(3), 11-14-91; Ord. No. 96-59, § 5, 6-16-96)