in Re City of Galveston ( 2015 )


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  •                                                                               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)