HAYS COUNTY TEXAS RUBEN BECERRA DEBBIE INGALSBE MICHELLE COHEN MORGAN HAMMER AND WALT SMITH IN THEIR OFFICIAL CAPACITIES v. LESLIE CARNES JIM CAMP CATHY RAMSEY AND GABRIELLE MOORE (2026)

DISSENTING OPINION

The Court's opinion decides a “question of first impression” that no one asked—whether a TOMA complaint concerning an election order may be “revived” when the party that ordered the election later seeks a declaration under the Expedited Declaratory Judgment Act (EDJA) that it complied with TOMA. No party raised this issue because Appellant Hays County specifically asks this Court to declare its election order did not violate TOMA. Yet, under the Court's opinion, if a plaintiff in an EDJA action, like the County in this case, requests a specific finding that it did not violate TOMA, no defendant or intervenor in the EDJA action can argue against that finding unless it earlier filed a successful action to stop the bond election. That cannot be the law.

Procedure matters. Hays County filed an action under the EDJA, and it was therefore Hays County's burden to prove that it ordered the election in a valid manner. Appellees, as intervenors in Hays County's EDJA action, had the right to challenge that finding in the EDJA suit as a defensive matter. That does not change just because Appellees also filed a separate election contest and did so too late. Because the Court ignores these procedural realities and what I believe was a violation of TOMA, I dissent.

BACKGROUND

The road projects in the 2024 Hays County Transportation Program were controversial and drew a lot of public interest.¹ Prior to the August 13 meeting approving the election order, the Commissioners Court discussed the 2024 Hays County Transportation Program and how to fund it at two separate meetings—a July 2, 2024, meeting and an August 6, 2024, meeting. Before each of these meetings, the Commissioners Court posted a physical notice in the Hays County Government Center, Tex. Gov't Code § 551.049,² and an online notice on the Hays County website, id. § 551.056(b). Under the miscellaneous sections of each agenda, the Commissioners Court provided notice regarding discussion of the 2024 Hays County Transportation Program. Specifically, the agenda for the July 2 meeting provided notice of a “[d]iscussion regarding the development of a 2024 Hays County Transportation Program, including a presentation of potential projects and discussion of funding strategies.” Similarly, the August 6 agenda provided notice of a “[d]iscussion and possible action regarding the development and funding of the 2024 Hays County Transportation Program, including potential projects, the issuance of debt, and bond election procedures.”

Before the August 13 meeting—the meeting in question in this appeal—Hays County again posted two written notices of the meeting, one physical and one online. Again, located under the “miscellaneous” section of the notice was agenda item K.2., which stated:

“Discussion and possible action to approve an order calling a bond election for November 5, 2024 to be held within Hays County, Texas; designating voter polling places; providing for early voting and election day voting; providing for performance of required administrative duties; providing for conduct of the election and for the conduct of a joint election with various political subdivisions; and providing for other matters related to such election.”

Unlike notices for previous meetings, this notice mentioned nothing about a “Transportation Program” or roads generally. Appellees contend that this notice was insufficient under TOMA.

Months after the election order was approved, but prior to the election, a group of Hays County residents—Appellees in this Court—filed suit in Hays County, seeking mandamus and injunctive relief. They asserted claims under TOMA and sought a declaration voiding the election order. The election occurred as scheduled in November, and the voters approved Proposition A by a margin of over 13,000 votes. Appellees later amended their claims to include an election contest under the Election Code, seeking to set aside the election results based on the TOMA violation. This is the proceeding on which the Court's opinion focuses.

In March 2025, Appellants filed the underlying bond validation suit in Travis County under the EDJA, seeking declarations that, among other things, the August 13 meeting notice complied with TOMA and that the calling of the election and all activities undertaken with respect to the election were legal and valid. To fully understand why the Court's opinion is wrong in this case, the nature of the underlying EDJA suit must first be understood.

ANALYSIS

A. The County seeks a declaration that it did not violate TOMA.

After the election, Hays County filed suit under the EDJA seeking declarations as to the validity and legality of the bonds. The trial court denied relief under the EDJA because it had granted Appellees summary judgment and declared the election order and the election void. Hays County asks this Court to reverse the trial court's judgment and render judgment making all required findings under the EDJA, including that (1) the August 13 notice complied with TOMA and that (2) the County legally and validly adopted the election order. Yet, the County also argues that even if there was a TOMA violation, the bond election cannot be declared void. Recognizing the tension between the EDJA suit and the election contest claim—and how a TOMA violation could impact the outcome of this appeal—the Attorney General submitted briefing post-oral argument, explaining that to validate the bonds in the EDJA suit, the order calling the bond election must be declared legally valid under the EDJA.

The EDJA “permits issuers of bonds and other public securities to resolve certain disputes regarding their securities as to all interested parties on an expedited basis.” City of Conroe v. San Jacinto River Auth., 602 S.W.3d 444, 447 (Tex. 2020). Under the EDJA, an issuer may seek a declaratory judgment as to the legality and validity of each “public security authorization.” Tex. Gov't Code § 1205.021(2). A public security authorization means “an action or proceeding by an issuer taken, made, or proposed to be taken or made in connection with or affecting a public security.” Id. § 1205.001(3). “In the public securities context, authorization has long referred to the initial actions or approvals needed to ensure the proper issuance of public securities.” City of Conroe, 602 S.W.3d at 452. Accordingly, “a public security authorization must have an authorizing connection with or effect on the public securities.” Id. at 453. Here, the County is an “issuer” under the EDJA, and the bonds it seeks to validate are “public securities.”

The adoption of an order calling a tax bond election in compliance with state law is a prerequisite to holding a bond election. See Tex. Gov't Code §§ 1251.003(a), (c); Tex. Elec. Code §§ 3.001, .005(c), .009. Thus, I agree with the Attorney General that the calling of an election has an “authorizing connection” with bonds and is a “public security authorization” under Chapter 1205. See City of Conroe, 602 S.W.3d at 453. As a result, to validate a tax bond under the EDJA, an issuer must obtain findings, as the County requests in this case, that the order calling the bond election is legally valid and did not violate TOMA.

All orders, including the election order, must be accompanied by a certificate confirming that the action was held in full compliance with TOMA. See 1 Tex. Admin. Code § 53.3(a)(12). If an election order was called in violation of TOMA, this implicates whether the “public security has been authorized to be issued in conformity with law,” a determination that the Attorney General must make before approving the public security. Tex. Gov't Code § 1202.003(b).

In its EDJA suit, the County seeks declarations that the August 13 notice was given in accordance with TOMA and that “the Commissioners court legally and validly approved the order calling the bond election to place Proposition A on the ballot for the November 2024 General Election.” The County cannot obtain these required declarations to validate the bonds if there was a TOMA violation in calling the election. As such, the TOMA issue is dispositive in this case.

This conclusion is important because it essentially renders Appellees' election contest, in which they seek to set aside the results of the bond election, unnecessary to decide given the required findings in the EDJA suit. Although the Court's position about the lateness of Appellees' claim would likely be correct if this appeal involved only an election contest, it misses the nature of the underlying EDJA suit. To be sure, one of the claims on which the trial court granted summary judgment is an election contest; but ruling on that issue is not required in this appeal because of the EDJA relief sought by Appellants. Appellants ask us to render judgment for them under the EDJA, including declaring that the County did not violate TOMA.

The majority holds that Appellees' TOMA challenge was untimely (an argument that was never made on appeal or to the trial court), and that because the election occurred before adjudicating the TOMA issue, the election order cannot be declared void. But this holding flips the burden in the EDJA suit and ignores all the requirements an issuer must meet for public securities to be approved for issuance in Texas. As a practical matter, under the Court's reasoning, an issuer would never have to certify or prove it complied with TOMA in calling an election, because an election always occurs before an issuer seeks approval of its public securities—whether in an EDJA suit or through the administrative process with the Attorney General. In other words, under the Court's logic, issuers get a free pass on their obligations under TOMA so long as the election occurs before a challenger successfully raises a TOMA violation. Not only would this conclusion erode trust in our local governments, but it would also undermine the current state of public securities law in Texas. The effect of the Court's opinion is to cabin relief under TOMA to emergency, pre-election relief that is waived if the election is not stopped. Under the Court's opinion, Appellees cannot even raise TOMA compliance as a defensive issue in an EDJA action. That cannot be the law.³

B. The notice violated the Texas Open Meetings Act.

Open government is important—a core purpose of TOMA is to enable the public to have access to the actual decision-making process of its governmental bodies. City of San Antonio v. Fourth Ct. of Appeals, 820 S.W.2d 762, 765 (Tex. 1991); Cox Enters., Inc. v. Bd. of Tr. of Austin Ind. Sch. Dist., 706 S.W.2d 956, 960 (Tex. 1986). As such, TOMA requires “openness at every stage of [a governmental body's] deliberations” because the citizens of Texas are entitled to know not only what government decided but also to observe how and why every decision is enacted. See Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990); see also Tex. Gov't Code § 551.002 (providing that every “regular, special, or called meeting of a governmental body shall be open to the public”).

Consistent with these principles, a county commissioners court “shall give written notice of the date, hour, place, and subject of each meeting held by the governmental body.” Tex. Gov't Code § 551.041. It must “post notice of each meeting on a bulletin board at a place convenient to the public in the county courthouse.” Id. § 551.049(1). It must also “concurrently post notice of [the] meeting and the agenda for the meeting on [its] Internet website.” Id. § 551.056(b).

The dispute in this case is whether the “subject” of the notice for the August 13 meeting was sufficient. Generally, a notice is sufficient under TOMA if it informs a reader that “some action” will be considered regarding “the topic for consideration.” Cox Enters., 706 S.W.2d at 958. The adequacy of the notice is determined by comparing it to the action taken at the open meeting. In re City of Amarillo, No. 07–22–00341–CV, 2023 WL 5279473, at *5 (Tex. App.—Amarillo Aug. 16, 2023, no pet.) (mem. op.). A notice need not provide exacting detail of all issues to be decided. Burks v. Yarbrough, 157 S.W.3d 876, 883 (Tex. App.—Houston [14th Dist.] 2005, no pet.). “As long as a reader is alerted to the topic for consideration, it is not necessary to state all of the consequences which may flow from consideration of the topic.” Cox Enters., 706 S.W.2d at 958. General notice in certain cases is enough for substantial compliance with TOMA even though the notice is not as specific as it could be. Id. (citing Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975) and Tex. Tpk. Auth. v. City of Fort Worth, 554 S.W.2d 675 (Tex. 1977)). Anything less than full disclosure, however, is insufficient. Id. at 960.

The Texas Supreme Court has outlined the spectrum of notices from multiple that were sufficient to one that was not. In City of San Antonio v. Fourth Court of Appeals, the court held a notice sufficient. See 820 S.W.2d at 766. There, the city council posted a notice stating it would consider “[a]n Ordinance determining the necessity for and authorizing the condemnation of certain property in County Blocks 4180, 4181, 4188, and 4297 in Southwest Bexar County for the construction of the Applewhite Water Supply Project.” Id. at 764. A property owner challenged the sufficiency of the notice. The Texas Supreme Court held the notice sufficient, reasoning that “[a]ny readers interested in that project had more than sufficient notice that the [c]ity [c]ouncil would be considering action relating to it.” Id. at 766. Further, “readers who did own property in those blocks were on notice of some risk that their land might be condemned. That [was] all [TOMA] require[d].” Id. Although the city could have given more particularized notice so that the individual property owners had notice that their particular tracts of land were the subject of the proposed condemnation ordinance, the notice itself was sufficient to meet the “subject” requirement under TOMA. Id.⁴

Five years before City of San Antonio, the Texas Supreme Court concluded a notice was insufficient under TOMA. In Cox Enterprises, the board of a school district posted notice of a closed executive session that listed only general topics such as “personnel” and “litigation.” 706 S.W.2d at 957. The topics considered, however, were the hiring of a superintendent and a major desegregation lawsuit that had lasted for years. Id. at 959. Relying on guidance from an Attorney General Opinion, the Texas Supreme Court held the school board did not provide full and adequate notice, “particularly where the subject slated for discussion was one of special interest to the public.” Id. (relying on Op. Tex. Att'y Gen. No. H–1045 (1977)). The selection of the superintendent was “not in the same category as ordinary personnel matters” and a major desegregation lawsuit that had lasted years and would have a long-lasting impact was not in the same category as the more “common litigation.” Id.

Several Texas courts of appeals have addressed the sufficiency of an open meeting notice's subject since these seminal cases.⁵ For example, in In re City of Amarillo, the city posted an agenda with a notice of a “discussion and consideration of an ordinance authorizing the issuance of the [city] Texas Combination Tax and Revenue Notes, Series 2022A resolving other matters incident and related thereto including the approval of a paying agent/registrar agreement and a purchase contract.” 2023 WL 5279473, at *2. The city also attached 197 pages of related documents to the agenda. Id. at *1. The purpose of the notes was a $260.5 million plan for renovating and expanding a civic center complex—a project that had previously been rejected by voters in a bond election two years prior. Id. The court held the notice was insufficient because the notice failed to “adequately inform the reader that the purpose of the anticipation notes would be to revive [a] previously-voter-rejected civic center project.” Id. at *5. Relying on Cox Enterprises, the court concluded the notice was required to be more specific because the civic center project was of special interest to the general public. Id.

Guided by these cases, I would conclude the August 13 notice was insufficient under TOMA. The summary judgment evidence showed that certain road projects in Hays County were controversial and strongly opposed, such as the SH 45 project that would extend into Travis County to connect to I-35, and the extension of the FM 150 project. Additionally, the $439 million in bonds was a significant amount that would roughly double the County's debt. In light of the expected public interest and the controversial road projects included in the bond package, the general notice of a “discussion and possible action to approve an order calling a bond election,” particularly after describing it as the “Hays County Transportation Program” in prior meeting notices, does not fully disclose the purpose of the order calling the bond election. The fact that a few citizens still attended the meeting, as the Court points out as if that somehow matters, does not make it compliant with TOMA; “no harm, no foul” might work on the basketball court, but it is not a legal principle that saves an insufficient notice under TOMA. See In re City of Amarillo, 2023 WL 5279473, at *6 (concluding citizen attendance at a meeting did not excuse city from its legal obligations to the general public).

There are countless reasons why a county may want to call for a bond election, and there are situations where a general description is likely sufficient. This is not one of them. Here, similar to the circumstances in Cox Enterprises and In re City of Amarillo, an interested reader had no way of knowing that the agenda's reference to a “bond election” pertained to $439 million in bonds for 31 road projects, some of which were controversial. To be certain, the notice did not have to provide a detailed description of the road projects. But under these circumstances, the notice needed to say more than just a “bond election” with no description of the subject included.

The County argues, and the Court accepts, that the draft road bond election order provided online was part of the notice itself and essentially cured any defect in the agenda's notice. Online, the county posted the same agenda item as on the physical notice, stating “discussion and possible action to approve an order calling a bond election,” but it was hyperlinked. If a reader clicked on this agenda item, the reader would be taken to another page that contained the same language, and that also included an attachment labeled the “Order Calling Road Bond Election.” The attached draft road bond election order detailed (1) the amount of the proposed bond issuance; (2) the proposed 31 transportation projects; (3) the general location of the proposed transportation projects; (4) draft language for Proposition A; and (5) draft ballot language to be included on the ballot for the 2024 election.

Admittedly, most of the Texas Supreme Court's writings on TOMA preceded the internet. In the decades since Cox Enterprises and City of San Antonio, the Legislature has amended TOMA to address the practical realities of the internet in public communication. For instance, in 2005, the Legislature amended Section 551.056 to require certain governmental bodies, including counties, to concurrently post notice of a meeting on the internet website of the governmental body in addition to a physical notice. Act of June 17, 2005, 79th Leg., R.S., ch. 340, § 1, 2005 Tex. Gen. Laws 982, 983 (codified at Tex. Gov't Code § 551.056(b)). Although not applicable in this case, the Court notes that the Legislature recently amended Section 551.049 to now give a county the option to only post online. Act of May 22, 2025, 89th Leg., R.S., ch. 475, § 2, 2025 Tex. Gen. Laws 1094, 1094 (codified at Tex. Gov't Code § 551.049(2)).⁶

These changes, however, do not excuse a governmental entity from providing sufficient notice if it also posts multiple pages of supporting documentation online. The statute addresses the notice provided, not the documents that may be attached to the notice, whether by hyperlink or otherwise. Although the County provided the draft election order online by hyperlink, the agenda item's notice itself is not sufficient to put a reader on notice of the subject of the bonds. If the notice is insufficient, someone reading the agenda item may never click the hyperlink to reach the additional details. Supporting documents provided online do not necessarily cure insufficient notice in the agenda, in my opinion. Indeed, the Texas Supreme Court has cautioned, pre-internet, that too much detail can overwhelm the reader and prove even less informative. City of San Antonio, 820 S.W.2d at 766. The notice the County provided online is the same notice it posted at the courthouse, and they were both insufficient to comply with TOMA under existing case law.

C. A Call for Review.

This case is important to the state's jurisprudence. If allowed to stand, this Court's opinion creates a procedural mess. Under the majority's analysis, once an election goes forward and a vote in favor of bond issuance occurs, no one can allege a violation of TOMA unless they previously stopped the election from going forward. Otherwise, their claim is not timely. Under the Court's logic, that is true even if the party seeking approval of the bonds files a suit seeking a declaration of compliance with TOMA under the EDJA and the party challenging the bonds immediately intervenes and contends, as a defensive matter, that a TOMA violation occurred. That would have been the procedural posture here had the Appellees not sought to consolidate their previous suit filed in Hays County with the County's suit in Travis County. If the only claim pending in Travis County had been the County's EDJA suit, how could anyone reason that Appellees' claimed TOMA violation was late? Of course, it would not have been.

Yet, under the majority's reasoning, that is the conclusion—Appellees were somehow late solely because they had not previously stopped the election from happening. That cannot be the law. Otherwise, the EDJA and its required declarations are meaningless because no one can challenge the required declaration that the election order was valid after the election has already occurred (which, not incidentally, is when a suit under the EDJA must be filed). The Court also ignores the very relief the County seeks—a declaration that it did not violate TOMA in ordering the election. The Appellees, as intervenors in the trial court, certainly had the right and ability to challenge, as a defensive matter, the County's entitlement to that declaration regardless of when they filed their election contest.

In addition, as outlined in this opinion, the Texas Supreme Court has not reviewed an alleged violation of TOMA in decades, prior to the advent of the internet. Admittedly, reasonable minds may differ under the facts of this case about whether a TOMA violation occurred given the County's online posting, which included a draft copy of the election order by hyperlink. These new technological nuances in TOMA compliance should be addressed going forward so that entities that must comply with TOMA are not left to guess what type of notice is sufficient. I urge the Texas Supreme Court to review this case and provide such guidance.

CONCLUSION

This case is a procedural mess, and the Court's opinion only makes it messier. Yes, Appellees filed an election contest and likely did so too late. But no, that does not preclude Appellees from participating in the County's EDJA suit and contending that the County is not entitled to its requested declaration that its election order complied with TOMA. Appellees have a right to challenge the declaration the County seeks. Because the Court ignores these realities, I dissent.

FOOTNOTES

1.   For instance, one portion of the bond package related to extending SH 45 into the boundaries of Travis County. The Attorney General objected to validation of that portion of the bond package. Appellants have withdrawn their appeal of the trial court's ruling with regard to that portion of the bond package.

2.   The Texas Legislature amended Section 551.049 in the 89th Regular Session. Act of May 22, 2025, 89th Leg., R.S., ch. 475, § 2, 2025 Tex. Gen. Laws 1094, 1094. All references to section 551.049 in this opinion are to the pre-amendment version, which was in effect at the time of the notice.

3.   By the Court's logic, a party should not be able to raise as a defense a theory on which limitations would have run if made as an independent claim. But that is not the law—even if limitations would bar a claim for recovery, that same claim can still be raised defensively. See Morris-Buick Co. v. Davis, 91 S.W.2d 313, 314 (Tex. [Comm'n Op.] 1936); Tamimi Global Co., Ltd. v. Kellogg Brown & Root, L.L.C., 483 S.W.3d 678, 702 (Tex. App.—Houston [14th Dist.] 2015, no pet.). An example is fraud as a defense to a contract claim. A party can raise that defense even if its time has expired for filing an independent claim to recover for fraud related to the contract. See Syrian Am. Oil Corp., S.A. v. Pecten Orient Co., 524 S.W.3d 350, 364 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

4.   See also Texas Turnpike Authority v. City of Fort Worth, 554 S.W.2d 675, 676 (Tex. 1977) (concluding open meeting notice of considering a request “to determine feasibility of a bond issue to expand and enlarge the Dallas-Fort Worth Turnpike” sufficient); Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975) (concluding open meeting notice of “changes in electric power rates for electric power within the boundaries of the [city]” sufficient).

5.   See, e.g., Creedmoor Maha Water Supply Corp. v. Barton Springs-Edwards Aquifer Conservation Dist., 784 S.W.2d 79, 85–87 (Tex. App.—Austin 1989, writ denied); Markowski v. City of Marlin, 940 S.W.2d 720, 724–26 (Tex. App.—Waco 1997, no writ); Burks v. Yarbrough, 157 S.W.3d 876, 881–84 (Tex. App.—Houston [14th Dist.] 2005, no pet.); City of Laredo v. Escamilla, 219 S.W.3d 14, 19–20 (Tex. App.—San Antonio 2006, pet. denied); In re City of Amarillo, No. 07–22–00341–CV, 2023 WL 5279473, at *4–6 (Tex. App.—Amarillo Aug. 16, 2023, no pet.) (mem. op.).

6.   “Electronic display” includes a county's public internet website. Tex. Loc. Gov't Code § 82.051(a)(2).

Scott K. Field Justice