IN THE SUPREME COURT OF TEXAS

No. 98-0617

City of Garland, Texas and Ron Holifield, Petitioners

v.

The Dallas Morning News, Respondent

On Petition for Review from the

Court of Appeals for the Fifth District of Texas

Argued March 3, 1999

Justice Enoch, joined by Chief Justice Phillips, concurring.

The Court today overrules the City of Garland's motion for rehearing. In this supplemental opinion, I address a point raised by the City that primarily attacks my concurring opinion.

The City argues that the city manager, not the city council, was the "decisionmaker," and that by presenting the draft document to the city council, he was merely seeking advice about whether to use the document.

That distinction is without a difference. The city manager serves at the pleasure of the city council. ⁽¹⁾ He was not asking individual council members what they thought; indeed, he presented the draft document to the city council in session for its comments. The city council used that draft to answer the city manager's request for advice, which he then acted upon.

I am not persuaded by the City's attempt to disguise the determinative nature of the council's input as "advice." The council hires, fires, and supervises the manager. When the manager seeks guidance from the council in session on an important matter, it would be inaccurate to label either the session merely advisory or the accompanying documents as simply "drafts." Thus, even if the city's characterization of the city manager's role in relation to the council is technically correct, I do not think it controls our interpretation of the statute.

___________________________

Craig T. Enoch

Justice

Opinion delivered: April 13, 2000

1. See Garland City Charter, Art. IV §§ 21(a) & 22.