GENE MARTIN AND DWIGHT HARRIS v. VICTORIA INDEPENDENT SCHOOL DISTRICT--Appeal from 135th District Court of Victoria County

NUMBER 13-01-096-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

  GENE MARTIN AND DWIGHT HARRIS, Appellants,

v.

 VICTORIA INDEPENDENT SCHOOL DISTRICT, Appellee.

___________________________________________________________________

On appeal from the 135th District Court

of Victoria County, Texas.

__________________________________________________________________

O P I N I O N

Before Justices Dorsey, Ya ez, and Rodriguez

Opinion by Justice Rodriguez

Appellants, Gene Martin and Dwight Harris, teachers at Victoria High School, appeal from a summary judgment in an action under the Texas Open Meetings Act (the Act). See Tex. Gov=t Code Ann. '' 551.001-.144 (Vernon 1994 & Supp. 2002). They filed suit against appellee, the Victoria Independent School District (the District), alleging the District violated the Act by failing to give sufficient notice of its meeting and by excluding them from a closed session after they requested that any discussion regarding their transfers be done in open session. On cross-motions for summary judgment, the trial court denied appellants= summary judgment motion, granted the District=s cross-motion, and dismissed appellants= claims with prejudice. By one issue, appellants contend the trial court erred in granting the District=s summary judgment and dismissing their case. We affirm.

I. Background

On January 8, 1996, the District=s former superintendent, Robert Brezina, reassigned appellants from their teaching positions at Victoria High School to other positions within the school district.[1] Ten days following the transfers, a regular meeting of the District=s Board of Trustees (Board) was scheduled. The posted agenda for the January 18, 1996, Board meeting included notice of a closed session,

called under the authority of the Texas Open Meetings Act, Texas Government Code Chapter 551, Section 551.071, to meet in executive session with the Board=s attorneys to discuss pending or contemplated litigation and other attorney/client matters; . . . to discuss and/or consider any and all personnel issues contemplated or allowed by Section 551.074, including but not limited to the employment of personnel; [and] to confer with one or more employees of the District to receive a report and/or other information regarding and all issues contemplated or allowed by Section 551.075 individually or in conjunction with any other section stated herein. . . .

Before the closed meeting, appellants requested that the Board not discuss or deliberate their reassignments during the closed session. While the District asserts the Board did not discuss or deliberate the reassignments during the closed session, it did receive a report from Brezina and questioned him about the transfers. No action regarding the reassignments was taken by the Board in closed session or otherwise.

In 1999, appellants filed the present lawsuit in the 135th District Court of Victoria County, Texas, seeking mandamus and injunctive relief, plus attorneys= fees and costs.[2] See id. ' 551.0142 (Vernon 1994). In August 2000, appellants filed a motion for summary judgment requesting judgment declaring the District had violated the Act. They also sought summary judgment on the District=s defenses of limitations and laches. In response, the District filed a cross-motion for summary judgment asserting no evidence, or that it had disproved at least one element of each of appellants= claims. The District also asserted appellants= claims under the Act were moot.[3] Following a hearing on both motions, the trial court granted the District=s summary judgment on all claims, and denied the motion filed by appellants. The trial court further dismissed with prejudice all claims against the District. On appeal, appellants challenge the trial court=s decision regarding the alleged violations of the Act. They argue that (1) the District violated the Act, (2) their claim is not moot, and (3) the court should have granted their summary judgment on the District=s affirmative defenses of limitations and laches.

II. Standard of Review

We review declaratory judgments under the same standards as other judgments and decrees, FDIC v. Projects Am. Corp., 828 S.W.2d 771, 772 (Tex. App.B Texarkana 1992, writ denied), looking to the procedure used to resolve the issue at trial to determine the standard of review on appeal. Roberts v. Squyres, 4 S.W.3d 485, 488 (Tex. App.BBeaumont 1999, pet. filed); City of Galveston v. Giles, 902 S.W.2d 167, 170-71 (Tex. App.BHouston [1st Dist.] 1995, no writ). Here, because the case was resolved by competing motions for summary judgment, we review the propriety of the declaratory judgment under the standards applied to summary judgments. Unauthorized Practice of Law Comm. v. Jansen, 816 S.W.2d 813, 814 (Tex. App.BHouston [14th Dist.] 1991, writ denied) (case submitted on agreed statement and on motion for summary judgment). Summary judgment should be granted if a party shows that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a. Granting a defendant=s motion for summary judgment is proper only when the evidence establishes there is no genuine issue of material fact concerning at least one essential element of a plaintiff=s cause of action, Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970), or conclusively establishes each element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides= summary judgment evidence and determine all questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). Before we may reverse summary judgment for one party and render judgment for the other party, however, both parties must have sought final judgment relief in their cross motions for summary judgment. CU Lloyd=s of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998).

III. Analysis

A. Notice

By their sole point, appellants first argue the District violated the Act by failing to give the public sufficiently specific notice of the subject matter of their closed meeting. The District, however, asserts that an exception to the notice requirement applies. It contends that, at the time of the events that form the basis of this lawsuit, receipt of an employee=s report and questions asked and answered during the session did not constitute a meeting under the Act and, therefore, did not require any notice, general or specific.

The Act provides that all Aregular, special or called meetings of a governmental body shall be open to the public,@ absent an exception under the Act. Tex. Gov=t Code Ann. ' 551.002 (Vernon 1994). A governmental body must give written notice of the date, hour, place, and subject of each meeting to be held by the governmental body. Id. ' 551.041 (Vernon 1994); see Cox Enters. v. Austin Indep. Sch. Dist., 706 S.W.2d 956, 959 (Tex. 1986) (Act requires full and fair disclosure of subject matter of governmental meetings open to public). However, in 1996, section 551.075 provided an exception under the Act. Act of May 4, 1993, 73d Leg., R.S., ch. 268, ' 1, sec. 551.075, 1993 Tex. Gen. Laws 583, 590 (amended 1999) (current version at Tex. Gov=t Code Ann. ' 551.075 (Vernon Supp. 2002)). Section 551.075, at that time, provided:

(a) This chapter does not require a governmental body to confer with one or more employees of the governmental body in an open meeting if the only purpose of the conference is to:

(1) receive information from the employees; or

(2) question the employees.

(b) During a conference under Subsection (a), members of the governmental body may not deliberate public business or agency policy that affects public business.

Id. According to opinions of the Texas Attorney General=s office, A>staff briefing sessions,= under [this] prior law, were not >meetings= within the Act, and were therefore not required to be open to the public or to be preceded by notice.@ Tex. Att=y Gen. Op. No. JC-0169 (2000) at *11-12; see Tex. Att=y Gen. Op. Nos. DM-191 (1992) at *5-8; JM-1058 (1989) at *8-12.[4]

The undisputed summary judgment evidence establishes that the Board met in closed session to receive information from the District=s superintendent regarding the transfers of appellants, and to consult with the District=s legal counsel regarding the matter.[5] Superintendent Brezina testified there was no discussion of any kind between the District=s trustees relating to Harris or Martin. He testified he gave a report to the Board and Board members asked questions regarding the reassignments; however, members were not allowed to discuss the information between themselves. Paul Kornfuehrer, president of the Board at that time, also testified that the Board was strongly advised against and did not deliberate or discuss the reassignments among themselves.

Brezina further testified that reassignment of personnel is an administrative function to be exercised by the superintendent, and the Board had no authority to dictate the assignment of employees within the District. Kornfuehrer testified the Board did not have authority on January 18, 1996, to take any action regarding appellants. Moreover, the evidence shows there was no action item on the agenda for the January 18, 1996, meeting that would have allowed the Board to take any action regarding Martin or Harris.

The events that form the basis of this lawsuit occurred in 1996. While the statute has since been amended to provide that a governmental body is subject to the Act even if the members merely receive information and do not engage in deliberations among themselves or with a third party including an employee of the governmental body, see Tex. Gov=t Code Ann. '551.001(4)(B)(iv) (Vernon Supp. 2002), between 1987 and 1999, when a quorum of a governmental body met to listen, without discussion, to a briefing by an employee, that gathering did not fall within the definition of "meeting" and was not subject to the Act. See Tex. Att=y Gen. Op. No. JC-0169 (2000) at *12-14. Thus, based on the facts of this case, we conclude no posting of the briefing session, specific or otherwise, was required in order to receive the report and to ask questions of the superintendent. The general notice surpassed the requirements for this exception and the meeting held for that purpose; thus, the notice was adequate. The trial court did not err in granting the District=s summary judgment as the notice was proper.

B. Request for Open Session

Appellants also argue the Board=s closed meeting violated the Act because they requested any discussion regarding their transfers be in open session. Section 551.074 of the Act provides that a governmental body is not required to conduct an open meeting to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee, or to hear a complaint or charge against an employee, unless the employee who is the subject of the deliberation or hearing requests a public hearing. Tex. Gov=t Code Ann. ' 551.074 (Vernon 1994). Appellants assert that the District=s right to conduct a closed meeting does not, under any circumstances, apply if the employee who is the subject of the deliberations or hearing requests a public hearing.

We have concluded, however, the exception found in former section 551.075 applies in this case; thus, the meeting does not fall within the Act. Moreover, former section 551.075 contained no provision giving an employee the right to request that the Board meet in open session when a staff briefing session was called. See Act of May 4, 1993, 73d Leg., R.S., ch. 268, ' 1, sec. 551.075, 1993 Tex. Gen. Laws 583, 590 (amended 1999). We cannot conclude that a request made pursuant to section 551.074 applies to a briefing session that is not covered by the Act. See Tex. Att=y Gen. Op. Nos. JC-0169 (2000) at *11-12; DM-191 (1992) at *5-8; JM-1058 (1989) at *8-12. The trial court did not err in granting the District=s summary judgment, as the Board was entitled to refuse appellants= request to meet in open session.

C. District=s Defenses

Because we have concluded the District did not violate the Act, we need not address appellants= contention that their claim is not moot. See Tex. R. App. P. 47.1. Furthermore, because it is clear from the record that the trial court=s ruling was not based on the District=s affirmative defenses of limitations and laches, we need not address appellants= argument regarding those defenses. See id.

IV. Conclusion

Having concluded the District=s notice and briefing session did not violate the Act, the trial court did not err in denying appellants= summary judgment motion, granting the District=s cross- motion for summary judgment, and dismissing appellants= claims with prejudice.

The judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.3.

Opinion delivered and filed

this 8th day of August, 2002.

[1]Harris had an extensive history of involvement in the teacher=s union, having previously served as president of the Victoria Federation of Teachers and, at the time of the events in question, as vice-president and grievance officer. Together, appellants served on a committee charged with improving labor-management relations at Victoria High School, where they both taught. Members of this committee were to study and suggest improvements regarding labor relations problems at Victoria High School.

[2]In 1996, appellants first filed their lawsuit in Victoria County Court at Law Number One, alleging violations of the Texas Open Meetings Act and the Texas Public Information Act. See Tex. Gov=t Code Ann.''551.001-.144 (Vernon 1994 & Supp. 2002) (Texas Open Meetings Act); Tex. Gov=t Code Ann. '' 552.001-.353 (Vernon 1994 & Supp. 2002) (Texas Public Information Act, formerly Texas Open Records Act). After a full bench trial on the merits, the court ruled in favor of the District on all claims and held it had not violated either act. On appeal, this Court found that the suit had been filed in a court without jurisdiction to hear such actions, thus, the judgment was void. We vacated the judgment below and dismissed the appeal for want of jurisdiction. See Martin & Harris v. Victoria Indep. Sch. Dist., 972 S.W.2d 815, 819 (Tex. App.BCorpus Christi 1998, pet. denied). In the current lawsuit, prior to the entry of the summary judgment, appellants amended their petition to assert only violations of the Open Meetings Act.

[3]The District=s motion did not respond to appellants= no-evidence challenge regarding its defenses of limitations and laches.

[4]In 1999, AHouse Bill 156 deleted this general authorization for briefing sessions from section 551.075 and replaced it with a provision applicable only to the board of trustees of the Texas Growth Fund.@ Tex. Att'y Gen. Op. No. JC-0169 (2000) at *13 (citing Act of May 22, 1999, 76th Leg., R.S., ch. 647 ' 2, sec. 551.075, 1999 Tex. Gen. Laws 3218-19 (codified at Tex. Gov=t Code Ann. ' 551.075 (Vernon Supp. 2000)). Furthermore, under section 551.001(4)(B)(iv) of the government code, a governmental body is now subject to the Open Meetings Act even if the members merely receive information and do not engage in deliberations among themselves or with a third party, including an employee of the governmental body. See Tex. Att'y Gen. Op. No. JC-0169 (2000) at * 5-6 (citing Tex. Gov=t Code Ann. '551.001(4) (Vernon 2000)).

[5]Although appellants reference the generic label of Alitigation@in their contention that such labels Aare insufficient to adequately describe the subject of a closed session when the subject is of special interest to the public,@they do not develop this argument by providing citations to authorities and to the record, in support of the reference to Alitigation.@ See Tex. R. App. P. 38.1(h). Therefore, we need not address the notice issue as it relates to section 551.071, the litigation exception. See Tex. Gov=t Code Ann.' 551.071 (Vernon 1994).