in Re City of Galveston ( 2015 )

Petition for Writ of Mandamus Conditionally Granted in Part, Denied in
Part, and Memorandum Opinion filed March 3, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-01005-CV
IN RE CITY OF GALVESTON, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
122nd District Court
Galveston County, Texas
Trial Court Cause No. 12-CV-0348
MEMORANDUM OPINION
On December 19, 2014, relator the City of Galveston, Texas (the “City”)
filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann.
§ 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, relator asks this
court to compel the Honorable John Ellisor, presiding judge of the 122nd District
Court of Galveston County, to vacate an order requiring relator to produce an
audio recording to real party in interest Indian Beach Property Owners’
Association, Inc. (the “Association”). We conditionally grant relator’s petition in
part, and deny it in part.
I. BACKGROUND
The Contested Zoning Decision
Judy Shorman, who is not a party to this original proceeding, sought to
operate a dog kennel on her property that is surrounded by the Indian Beach
residential subdivision. Accordingly, Shorman filed an application with the City
for approval of a general land use plan for her proposed kennel. Following two
public hearings, the City of Galveston Planning Commission denied the
application. Shorman then appealed the Planning Commission’s decision to the
Galveston City Council.
Shorman’s appeal was noticed as an agenda item for the City Council’s
public pre-meeting workshop to be held on February 23, 2012. Also noticed on the
agenda for the pre-meeting workshop was a closed executive session pursuant
Section 551.071 of the Texas Government Code, a provision of the Texas Open
Meetings Act (“TOMA”), to discuss certain legal matters unrelated to Shorman’s
appeal (hereinafter, “Other Agenda Items”). The City Council meeting was
scheduled later on the same day as the workshop, and Shorman’s appeal was
noticed as an agenda item for the meeting.
At the pre-meeting workshop on February 23, 2012, various issues related to
Shorman’s appeal were publicly discussed by members of the City Council and the
City’s staff. In the course of that discussion, a City Council member asked the City
Attorney a question regarding the authority of the City to deny a general land use
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plan when the proposed use is listed as a permissible use for the zoning district at
issue. The City Attorney responded that she could not answer the legal question in
a public setting, and that the councilmember’s question would be better answered
in a closed session. After further discussion on the agenda item, the Mayor stated:
“We’ll have an executive session around noon and we’ll talk about it more.” Later
in the workshop, as the City Council was preparing to go into executive session,
the Mayor publicly announced that the executive session agenda would be
supplemented to include obtaining legal advice related to Shorman’s appeal.
The City Council then recessed the workshop and met in closed executive
session. The audio of the full executive session was recorded, but the City has not
publicly released the recording. At the public City Council meeting following the
conclusion of the pre-meeting workshop, the City Council formally heard
Shorman’s appeal of the Planning Commission’s decision. Numerous individuals
spoke on the matter, including Shorman and the attorney for the Association. After
hearing the comments, the City Council voted to reverse the decision of the
Planning Commission and thereby approve Shorman’s general land use plan to
operate the proposed dog kennel on her property.
The Trial Court’s Order
The Association filed suit against the City, challenging the decision to
approve Shorman’s application. In its live pleading, the Association seeks
declaratory and injunctive relief on the grounds that the City Council’s approval of
Shorman’s general land use plan is void for being in violation of TOMA. Among
other allegations, the Association specifically alleges that the City Council’s
executive session on February 23, 2012 was illegal because it involved discussion
3
of factual issues related to Shorman’s application, which the Association claims is
outside of the narrow exception for private attorney-client communications
authorized by TOMA.
During the course of the underlying litigation, the Association filed a motion
requesting that the trial court order the City to produce all recordings and
documents of the February 23, 2012 executive session to the court for in camera
inspection pursuant to another provision of TOMA, Section 551.104(b) of the
Government Code, specifically so the court could determine the basis for the City
Council’s decision to reverse the Planning Commission’s decision on Shorman’s
application. Following the City’s response and a hearing on the motion, the trial
court issued a written order granting the Association’s motion for inspection,
requiring the City to provide to the court the recording of the executive session for
in camera review. The City duly complied with the trial court’s order. The City
resubmitted the recording to the court approximately 18 months later, apparently
because the original submission had been misplaced.
On December 10, 2014, the trial court sua sponte issued to the parties a
memorandum order stating that the audio recording of the City Council’s executive
session “should be made available to the attorney for the [Association] within ten
working days of this memo.” In its order, the court referenced its earlier order that
the City provide the recording for in camera review. The court further found that
the stated purpose of the closed executive session was to obtain legal advice
pursuant to Section 551.071 of the Government Code. The court concluded,
however, that the executive session “exceeded the scope” of that section. The court
then quoted statements from the Open Meetings Handbook published by the
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Attorney General of Texas—including that “[a] governmental body may not
invoke section 551.071 to convene a closed session and then discuss matters
outside of that provision,” and “[g]eneral discussion of policy, unrelated to legal
matters, is not permitted under the language of [this exception] merely because an
attorney is present.” (last alteration in original).
The City seeks mandamus relief from the trial court’s order to disclose the
recording of the executive session to the Association. On December 22, 2014, we
ordered enforcement of the trial court’s order stayed pending consideration of the
City’s mandamus petition. In its sole issue presented, the City asserts that the trial
court’s order conflicts with TOMA’s authorization to conduct closed executive
sessions for the purpose of obtaining privileged legal advice.
II. THE MANDAMUS STANDARD
Generally, mandamus relief is appropriate only when the trial court clearly
abused its discretion and the relator has no adequate remedy by appeal. In re
Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial court abuses its
discretion if it: (1) reaches a decision so arbitrary and unreasonable as to constitute
a clear and prejudicial error of law; (2) clearly fails to correctly analyze or apply
the law; or (3) acts without reference to any guiding rules or principles. In re Park
Mem’l Condo. Ass’n, Inc., 322 S.W.3d 447, 449–50 (Tex. App.—Houston [14th
Dist.] 2010, orig. proceeding). An appellate remedy is adequate when any benefits
to mandamus review are outweighed by the detriments. In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). As the party seeking
relief, the relator bears the burden of demonstrating entitlement to mandamus
relief. See In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (per curiam)
5
(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig.
proceeding).
III. ANALYSIS
May this Court Conduct an In Camera Review of the Audio Recording?
In support of its mandamus petition, the City filed with this court under seal
a copy of the audio recording of the City Council’s February 23, 2012 closed
executive session and an unofficial transcription of the portion of that recording
pertaining to Shorman’s appeal. The Association argues that this court cannot
conduct an independent in camera review of the audio recording in evaluating the
City’s mandamus petition, because to do so would be to impermissibly substitute
this court’s judgment for that of the trial court on a question of fact. See, e.g., In re
Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (per curiam) (orig. proceeding) (“In
determining whether the trial court abused its discretion with respect to resolution
of factual matters, we may not substitute our judgment for that of the trial court . . .
.”). The Association’s argument is misplaced.
The central question the trial court decided in issuing the challenged order
was whether the substance of the City Council’s discussion of Shorman’s appeal
during the closed executive session exceeded the scope of the exception provided
in Section 551.071 of the Government Code. The Association asserts that this is a
factual determination, and thus generally cannot be disturbed on mandamus.
Contrary to the Association’s assertion, however, the question of whether a closed
meeting exceeded the permissible scope of an authorization provided by TOMA is
a mixed question of law and fact. In some circumstances—for example, where the
only contemporaneous memorialization of a closed meeting is an agenda or
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summary minutes rather than a verbatim transcript or recording—pure factual
questions may exist regarding the executive session, such as what was discussed,
whether any actions were taken, and who was present. But once the salient facts
are determined, the provisions of TOMA must be applied to those facts to
determine whether a closed meeting was proper.
By asking this court to conduct an in camera review of the audio recording
of the City Council’s February 23, 2012 closed executive session, the City is not
seeking to have this court to disturb any factual determinations of the trial court.
The facts of what precisely was said during the closed executive session are readily
ascertainable from the audio recording. The trial court issued its order after an in
camera review of that recording. Therefore, our review of the recording would
simply provide us with the same body of facts that was before the trial court. What
the City challenges in this original proceeding is not a finding as to what was said
during the executive session, but rather the trial court’s legal conclusion that what
was said exceeded the scope of Section 551.071. On that issue, the trial court has
no discretion. See, e.g., In re Guggenheim Corporate Funding, LLC, 380 S.W.3d
879, 883 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding [mand. dism’d])
(per curiam) (“A trial court has no discretion in determining what the law is or
applying the law to the facts.”).
When necessary, this court has reviewed information in camera to decide
questions within its purview. See, e.g., In re WHMC, 996 S.W.2d 409, 413 (Tex.
App.—Houston [14th Dist.] 1999, orig. proceeding) (noting that an affidavit
“when viewed with the in camera documents” sufficiently established that the
documents are privileged); see also Barnes v. Whittington, 751 S.W.2d 493, 495
7
(Tex. 1988) (orig. proceeding) (“[T]his court must review the documents
themselves to determine if they clearly support the privilege as a matter of law.”).
Accordingly, we have conducted our own in camera review of the audio recording,
and we base our analysis on the facts obtained from that review.
What Are the General Parameters of TOMA Implicated in this Case?
TOMA is codified in Chapter 551 of the Texas Government Code. Its core
purpose is “to enable public access to and to increase public knowledge of
government decisionmaking.” Burks v. Yarbrough, 157 S.W.3d 876, 881 (Tex.
App.—Houston [14th Dist.] 2005, no pet.) (quoting City of San Antonio v. Fourth
Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991) (orig. proceeding)). TOMA
requires that “[e]very regular, special, or called meeting of a governmental body
shall be open to the public, except as provided by this chapter.” Tex. Gov’t Code
Ann. § 551.002 (West 2012). TOMA further specifies various procedural
requirements pertaining to government meetings, including, for example, that
notice of meetings be given and that meetings be recorded or minutes be prepared.
See, e.g., Tex. Gov’t Code Ann. §§ 551.021 (West Supp. 2014), 551.041 (West
2012).
At issue in this original proceeding is an exception to TOMA’s open
meeting requirement that the City relied upon as authorization for the February 23,
2012 closed executive session. That exception provides: “A governmental body
may not conduct a private consultation with its attorney except[] . . . (2) on a
matter in which the duty of the attorney to the governmental body under the Texas
Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly
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conflicts with this chapter.” Tex. Gov’t Code Ann. § 551.071 (West 2012).1
Ordinarily, TOMA requires that any meeting properly closed under its provisions
still be recorded or that a certified agenda of the meeting be prepared, but private
attorney-client consultations permitted under Section 551.071 are exempted from
this requirement. Tex. Gov’t Code Ann. § 551.103(a) (West Supp. 2014). As noted
above, the City voluntarily chose to make an audio recording of the closed
executive session even though it was meeting pursuant to Section 551.071.
Parties that believe a governmental body has violated or will violate TOMA
may seek judicial redress. Tex. Gov’t Code Ann. § 551.142(a) (West 2012); see
also Kessling v. Friendswood Ind. Sch. Dist., 302 S.W.3d 373, 379–81 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied). “In litigation in a district court
involving an alleged violation” of TOMA, the court:
(1) is entitled to make an in camera inspection of the certified agenda
or recording [of a closed meeting];
(2) may admit all or part of the certified agenda or recording as
evidence, on entry of a final judgment; and
(3) may grant legal or equitable relief it considers appropriate,
including an order that the governmental body make available to
the public the certified agenda or recording of any part of a
meeting that was required to be open under this chapter.
Tex. Gov’t Code Ann. § 551.104(b) (West Supp. 2014). An order under Section
551.104(b)(3) is the only provision of TOMA authorizing the public disclosure of a
1
Subsection (1) of this provision also permits such private consultations with the
government’s attorney to obtain advice on “pending or contemplated litigation,” or “a settlement
offer,” Tex. Gov’t Code Ann. § 551.071(1) (West 2012), but this authorization is not relied upon
by the City in this case.
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recording of a closed meeting. See Tex. Att’y Gen. Op. No. JM-995 (1988), 1988
WL 406323 at *2–3; see also Tex. Gov’t Code Ann. § 551.146 (West Supp. 2014)
(establishing that unauthorized disclosure of a recording of a lawfully closed
meeting is a criminal violation).2
What is the Scope of the Section 551.071(2) Exception?
Several courts have recognized that the exception to the open meeting
requirement for attorney consultations in Section 551.071 incorporates the
attorney-client privilege. See, e.g., Killam Ranch Props., Ltd. v. Webb Cnty., 376
S.W.3d 146, 157 (Tex. App.—San Antonio 2012, pet. denied) (en banc) (op. on
reh’g); Tex. State Bd. of Pub. Accountancy v. Bass, 366 S.W.3d 751, 759 (Tex.
App.—Austin 2012, no pet.); Olympic Waste Servs. v. City of Grand Saline, 204
S.W.3d 496, 502 (Tex. App.—Tyler 2006, no pet.); see also Tex. Att’y Gen. Op.
No. JC-0233 (2000), 2000 WL 817085 at *2. The parties to this original
proceeding do not dispute the core proposition that Section 551.071(2) authorizes
closed meetings for the purpose of obtaining legal advice, but they do dispute the
precise scope of this authorization and the corresponding application to the
executive session recording. Specifically, the City argues that the complete
communication between an attorney and client, including factual information, is
privileged, and thus is within the scope of Section 551.071—but the City concedes
that discussions of policy unrelated to legal matters is not within the scope of this
section. The Association argues in response that the City’s construction would
2
Opinions of the Attorney General of Texas are not controlling on the courts, but they
are viewed as persuasive. See Holmes v. Morales, 924 S.W.2d 920, 924 (Tex. 1996); Solum
Eng’g, Inc. v. Starich, No. 14-13-00428-CV, 2014 WL 4262175, *2 (Tex. App.—Houston [14th
Dist.] Aug. 28, 2014, pet. denied) (mem. op.).
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“create a gaping hole in TOMA,” and that any discussion that strays from legal
advice is outside the scope of this section.
The Supreme Court of Texas “demand[s] exact and literal compliance with
the terms” of TOMA. Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 300 (Tex.
1990); see also Willmann v. City of San Antonio, 123 S.W.3d 469, 473 (Tex.
App.—San Antonio 2003, pet. denied) (“The provisions of TOMA are mandatory
and are to be liberally construed in favor of open government.”). “[A]
governmental body cannot invoke section 551.071 to convene a closed session and
then discuss topics outside of section 551.071.” Gardner v. Herring, 21 S.W.3d
767, 776 (Tex. App.—Amarillo 2000, no pet.). “If during an executive session
there is discussion of topics outside the scope of the statutory exception for legal
advice, then there is a violation of [TOMA].” Killam, 376 S.W.3d at 157.
In construing Section 551.071, the Attorney General has likewise rejected an
expansive interpretation, stating that “[t]he exceptions” in TOMA “are narrowly
drawn.” Tex. Att’y Gen. Op. No. JC-0233 (2000), 2000 WL 817085 at *4. As the
Attorney General explained:
[T]he communication must be related to an opinion on law or legal
services or assistance in some legal proceeding. Thus, a governmental
body may hold an executive session to seek or receive the advice of
its attorney only with regard to matters in which it seeks the attorney’s
legal advice . . . . If the discussion does not relate to a specific legal
proceeding, the closed door discussion with the attorney must be
limited to legal matters. General discussion of policy, unrelated to
legal matters, is not permitted . . . merely because an attorney is
present.
11
Id. at *3 (quoting, with added emphasis, Tex. Att’y Gen. Op. No. JM-100 (1983),
1983 WL 163523 at *2). Several courts have followed the Attorney General’s
opinion in this regard, as we now do. See, e.g., Killam, 376 S.W.3d at 157; Bass,
366 S.W.3d at 759; Olympic, 204 S.W.3d at 502.
Thus, for an executive session to be proper under Section 551.071(2), any
discussion during that session must be limited to the facilitation of legal advice by
the government’s attorney to the governmental body. See Tex. Att’y Gen. Op. No.
JC-0506 (2002), 2002 WL 1047850 at *4 (“[S]ection 551.071 applies only if a
governmental body conducts privileged attorney-client communications.”); Huie v.
DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (orig. proceeding) (“In Texas, the
attorney-client privilege protects confidential communications between a client and
attorney made for the purpose of facilitating the rendition of professional legal
services to the client.”). Any discussion that is not for the purpose of facilitating
legal advice is not appropriate in a closed session under Section 551.071(2), even if
such discussion has some connection to the matter on which legal advice is being
sought. See Olympic, 204 S.W.3d at 503 (concluding consultations with city
attorney about the consequences and legal ramifications from terminating a
contract qualified as legal advice under Section 551.071, but a discussion of
alternative contractual options did not); Tex. Att’y Gen. Op. No. JC-0233 (2000),
2000 WL 817085 at *3 (“[A] governmental body may consult with its attorney in
executive session to discuss the legal issues raised in connection with awarding a
contract, but it may not discuss the merits of a proposed contract, financial
considerations, or other nonlegal matters in an executive session held under section
551.071 of the Government Code.”).
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Although the exception in Section 551.071 is limited—and, consequently, a
governmental body’s discussion during an executive session must be
circumscribed to avoid exceeding the scope of the authorization—the means by
which a governmental body solicits and receives legal advice from its attorney
does not necessarily follow a formulaic construct. TOMA does not mandate that
communications between the governmental body and the government’s attorney in
an executive session under Section 551.071 adhere to a rigid stricture of direct
legal question immediately followed by a direct legal answer, but rather that the
purpose of any discussion is to facilitate the rendition of legal advice by the
government’s attorney.
For example, courts have recognized that members of the governmental
body may express certain opinions during a closed meeting. See, e.g., Bass, 366
S.W.3d at 762 (“[T]he statute contemplates that some deliberations may occur in
executive session, but establishes that the final resolution of a matter must occur in
open session. . . . TOMA does not prohibit . . . members in an executive session
from expressing their opinions on an issue or announcing how they expect to vote
on the issue in the open meeting, so long as the actual vote or decision is made in
open session.”) (internal citations and quotations omitted); City of Farmers Branch
v. Ramos, 235 S.W.3d 462, 468 (Tex. App.—Dallas 2007, no pet.) (“[W]e agree
with the general proposition that TOMA does not prohibit expression of opinions
in proper, closed meetings . . . .”); Weatherford v. City of San Marcos, 157 S.W.3d
473, 485 (Tex. App.—Austin 2004, pet. denied) (“The Act does not prohibit the
expression of opinions in a closed session, as long as the actual vote or decision is
made in an open session.”).
13
In light of these principles, we conclude that the conveyance of factual
information or the expression of opinion or intent by a member of a governmental
body may be appropriate in a closed meeting pursuant to Section 551.071 if the
purpose of any such statement is to facilitate the rendition of legal advice by the
government’s attorney. But cf. Tex. Gov’t Code Ann. § 551.102 (West 2012)
(providing that “[a] final action, decision, or vote on a matter deliberated in a
closed meeting . . . may only be made in an open meeting”). The Texas
Disciplinary Rules of Professional Conduct note that “[f]ree discussion should
prevail between lawyer and client in order for the lawyer to be fully informed and
for the client to obtain the full benefit of the legal system.” Tex. Disciplinary Rules
Prof’l Conduct R. 1.05 cmt. 1;3 see also Tex. Gov’t Code Ann. § 551.071(2) (West
2012) (defining scope of exception by reference to the Disciplinary Rules). It may
not be possible for the government’s attorney to provide appropriate legal advice
unless that attorney has an understanding of what the members of the
governmental body think about a particular matter, including, in some
circumstances, how members anticipate voting on a matter. See Bass, 366 S.W.3d
at 762 n.10 (“Preventing a governmental body’s members from expressing their
opinions on an issue, including how they expect to vote, would unreasonably limit
governmental bodies from permissible deliberations in executive sessions.”).
Furthermore, members of the governmental body may only be able to
discuss the impact of the attorney’s legal advice in the context of a closed session,
because to discuss it openly may reveal the confidential advice, which would
3
Reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar
R. art. X, § 9).
14
negate the purpose of Section 551.071(2). See Markowski v. City of Marlin, 940
S.W.2d 720, 726–27 (Tex. App.—Waco 1997, writ denied) (“[I]t follows that a
governmental body has as much right as an individual to consult with its attorney
without risking the disclosure of important confidential information. The
legislature obviously had this purpose in mind when it enacted section 551.071 . . .
. [L]ogic dictates that the information discussed at that meeting should be protected
by the attorney-client privilege.”) (internal citation omitted).
Whether any discussion during a closed executive session was for the
purpose of facilitating the rendition of legal advice by the government’s attorney
necessarily will be a context-specific inquiry. We thus turn our focus to the City
Council’s February 23, 2012 closed executive session.
Did the Trial Court Order the Disclosure of Communications Properly Closed to
the Public Under Section 551.071(2)?
The City challenges the trial court’s order to disclose the recording of the
closed executive session to the Association in two ways. First, the City argues that
the entire discussion about Shorman’s appeal was proper under Section 551.071(2)
because it all related to a legal matter. Second, the City argues that regardless of
whether the discussion of Shorman’s appeal was proper in the closed executive
session, the trial court’s order is overly broad because it requires the disclosure of
the full audio recording, which includes the City Council’s discussion of the Other
Agenda Items that are unrelated to Shorman’s appeal. We will address the latter
issue first.
The Association does not contest that the portions of the audio recording
concerning the Other Agenda Items that are unrelated to Shorman’s appeal are
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protected from disclosure, and it further disclaims any intent to obtain those
portions. The trial court’s order, however, is ambiguous as to the intended scope.
On one hand, the court made no explicit reference to the portions of the recording
concerning the Other Agenda Items. Also, the court references in the order the
“draft transcript” provided by the City along with the recording, in which only the
portion of the recording related to Shorman’s appeal was transcribed. However, the
order also refers to the “audio tape,” and references its prior order granting the
Association’s request for in camera inspection. The court’s prior order required the
City to provide “the recording tapes from the closed executive session of the City
Council held on February 23, 2012.” Likewise, the Association’s motion requested
the production of “all recordings and documents of the closed Executive Session of
the City Council held February 23, 2012.”
The only basis the trial court would have to order the production of those
portions of the recording containing the discussion of the Other Agenda Items
would be if the discussion of the Other Agenda Items exceeded the scope of the
exception provided in Section 551.071. See Tex. Gov’t Code Ann. § 551.104(b)(3)
(West Supp. 2014) (providing that a court may “order that the governmental body
make available to the public the . . . recording of any part of a meeting that was
required to be open under this chapter”). The trial court did not identify in its order
any reason why the discussion of the Other Agenda Items exceeded the scope of
the exception, and it does not appear the Association alleged any such reason.
Therefore, construing the trial court’s order to require the production of the entire
audio recording would not be a correct application of the law. “When an
ambiguous order is susceptible to two reasonable constructions, an appellate court
16
should adopt the construction that correctly applies the law.” MacGregor v. Rich,
941 S.W.2d 74, 75 (Tex. 1997) (per curiam). Thus, in light of the ambiguity, the
best reading of the trial court’s order is that it requires the City to produce only the
portion of the audio recording concerning Shorman’s appeal.
By contrast, there is no ambiguity regarding the trial court’s order as it
pertains to the portion concerning the discussion of Shorman’s appeal. The order
reflects a categorical conclusion that the City Council’s discussion on that matter
exceeded the scope of Section 551.071. In other words, the trial court determined
that the discussion was not for the purpose of facilitating the rendition of legal
advice by the City Attorney on Shorman’s appeal. See Tex. Att’y Gen. Op. No. JC-
0506 (2002), 2002 WL 1047850 at *4; Tex. Att’y Gen. Op. No. JC-0233 (2000),
2000 WL 817085 at *4.
We agree that certain aspects of the discussion of Shorman’s appeal during
the closed executive session exceeded the scope of Section 551.071(2). Although
these statements may have pertained to Shorman’s appeal, these statements were
not for the purpose of facilitating the rendition of legal advice. We do not agree,
however, that the entirety of the discussion of Shorman’s appeal during the closed
executive session exceeded the scope of Section 551.071(2). There are portions of
the executive session in which the conversation was for the purpose of facilitating
the rendition of legal advice pertaining to Shorman’s appeal. The trial court’s
authorization to order the disclosure of a recording of a closed executive session
extends only to “any part of a meeting that was required to be open under this
chapter.” Tex. Gov’t Code Ann. § 551.104(b)(3) (West Supp. 2014) (emphasis
added). By ordering that all discussion on Shorman’s appeal be disclosed to the
17
Association, the trial court ordered the disclosure of parts of the meeting that were
properly closed under TOMA. In so doing, the trial court abused its discretion. But
the trial court did not abuse its discretion with respect to those aspects of the
discussion that were not for the purpose of facilitating the rendition of legal advice,
and thus not proper in a closed session under Section 551.071(2).
We will not attempt in the context of this original proceeding to parse out
the specific portions of the audio recording that are outside the scope of Section
551.071. We believe it is best left to the trial court in the first instance to delineate
those statements in the audio recording that were to facilitate the rendition of legal
advice, and those that were not.
Does the City Have an Adequate Remedy by Appeal?
To be entitled to mandamus relief, the City must not only demonstrate an
abuse of discretion by the trial court, but also that it lacks an adequate remedy by
appeal. See Reece, 341 S.W.3d at 364. The trial court’s order required the
disclosure of the audio recording within a set number of days from the issuance of
the order. But the underlying litigation remains ongoing. Therefore, the effect of
the trial court’s order is to require the public disclosure of information—some of
which, as we have discussed, was properly closed to the public under Section
551.071(2)—before the City would have an opportunity to pursue any appellate
relief from that order. This is equivalent to an interlocutory discovery order
requiring the disclosure of privileged information, a situation for which mandamus
relief is available. See, e.g., In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218,
223 (Tex. 2004) (per curiam) (orig. proceeding) (“Mandamus is proper when the
trial court erroneously orders the disclosure of privileged information because the
18
trial court’s error cannot be corrected on appeal.”); see also Prudential, 148
S.W.3d at 136 (stating mandamus review may be necessary “to preserve important
substantive and procedural rights from impairment or loss”). We thus conclude that
the City lacks an adequate remedy by appeal.
CONCLUSION
We conditionally grant the City’s petition for writ of mandamus to the extent
the trial court ordered the disclosure of those portions of the audio recording of the
City Council’s February 23, 2012 closed executive session on Shorman’s appeal
that were properly closed to the public under Section 551.071(2) of the
Government Code. We deny relator’s petition for writ of mandamus with respect to
those portions of the audio recording where the closed discussion exceeded the
scope of Section 551.071(2). We accordingly direct the trial court to vacate its
December 10, 2014 order for the City to disclose the audio recording of the entire
discussion of Shorman’s appeal during the executive session, and to instead
exclude from its order of disclosure those parts of the discussion that were for the
purpose of facilitating the rendition of legal advice. We are confident that the trial
court will act in accordance with our opinion. The writ will issue only if the trial
court fails to do so.
We further lift our stay granted on December 22, 2014.
PER CURIAM
Panel consists of Justices Jamison, Busby, and Brown.
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