CITY OF RICHARDSON v. GORDON

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Court of Appeals of Texas,Dallas.

CITY OF RICHARDSON, Appellant v. William GORDON, Appellee.

No. 05-09-00532-CV.

Decided: March 18, 2010

Before Justices BRIDGES, LANG, and LANG-MIERS. Amber Leah Slayton, Peter G. Smith, for City of Richardson. Richard B. Tanner, for William Gordon.

OPINION

This is an interlocutory appeal from the denial in part of a plea to the jurisdiction. The City of Richardson contends that William Gordon's declaratory judgment action against the City for violations of its charter is moot, Gordon has no standing to assert the claim, and the City has governmental immunity. We disagree and affirm the trial court's order denying in part the plea to the jurisdiction.

Background

In October 2007, Gordon sued the City alleging that the city council violated the city charter and the Texas Open Meetings Act for many years by holding closed meetings. Gordon cited the language from the charter that was in effect at the time he filed the lawsuit to support his allegation that the city charter prohibited closed meetings:

All meetings of the Council and all committees thereof shall be open to the public and the rules of the Council shall provide that citizens of the city shall have a reasonable opportunity to be heard at any such meetings, concerning any matter there considered.

Richardson, Tex., City Charter § 3.10 (1989). He also contended that the closed meetings violated the Texas Open Meetings Act because that act does not authorize a city to hold closed meetings when the city charter requires all meetings to be open:

This chapter does not authorize a governmental body to close a meeting that a charter of the governmental body:

(1) prohibits from being closed; or

(2) requires to be open.

Tex. Gov't Code Ann. § 551.004 (Vernon 2004). Gordon asked the court to declare that the City had violated its charter and the Texas Open Meetings Act; to issue an injunction to prevent the City from engaging in any activities or contracts discussed or decided in the closed meetings; to issue an order requiring the City to produce agendas, tapes, and records from the closed meetings; and to award attorneys' fees pursuant to the declaratory judgment act. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 2008).

On November 14, 2007, the City amended its charter to require council meetings to be open to the public “except as otherwise permitted by state law.” Several months after the charter was amended, Gordon amended his petition to allege violations of the charter and the Texas Open Meetings Act up until the effective date of the amendment. He continued to seek injunctive relief and disclosure of records from the closed meetings.

Through a series of motions filed by the City and granted by the trial court, most of Gordon's claims were dismissed.1 The only claim remaining and that is the subject of this appeal is Gordon's request for a declaration that the council violated the charter by holding closed meetings from October 26, 2004 to November 13, 2007. On appeal, the City argues that the trial court did not have subject-matter jurisdiction over Gordon's remaining claim because (1) the claim for declaratory relief is moot, (2) Gordon has no standing to assert it, and (3) the City is immune from liability for attorneys' fees under the declaratory judgment act.2

Standard of Review

A party may challenge the trial court's subject-matter jurisdiction by filing a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). Whether the trial court has subject-matter jurisdiction is a question of law, which we review de novo. Id. at 226. The plaintiff has the burden to plead facts affirmatively showing that the trial court has subject-matter jurisdiction. Id. at 226. In conducting our review, we construe the pleadings liberally in favor of the plaintiff and look to the plaintiff's intent. Id. at 226-27. We consider the pleadings and evidence pertinent to the jurisdictional inquiry. Id.; City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686 (Tex.App.-Dallas 2003, pet. denied). However, we do not assess the merits of the plaintiff's claims. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). If the evidence creates a fact issue concerning jurisdiction, the plea to the jurisdiction must be denied. Miranda, 133 S.W.3d at 227-28.

Discussion

In its first issue, the City argues that Gordon's claim for declaratory relief is moot because the city charter was amended to authorize closed meetings as permitted by state law. The City also contends that when the trial court dismissed Gordon's claims for injunctive relief as moot, the request for a declaration became moot.

A case is moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex.2005). The mootness doctrine dictates that a court avoid rendering an advisory opinion by only deciding an issue that presents a “live” controversy at the time of the decision. City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex.App.-Dallas 2007, no pet.). An issue is moot if (1) it appears that a party seeks to obtain a judgment on a controversy that in reality does not exist, or (2) a party seeks a judgment on a matter that cannot have any practical legal effect on a then-existing controversy. Id.

In his live petition, Gordon alleged that the council conducted city business at closed meetings in violation of its charter and “without the knowledge, participation, support or opposition of the public.” He cited the language from the city charter in effect at the time he filed the lawsuit to support his allegations. In his affidavit attached to the petition, Gordon testified that he had attended numerous council meetings where he was excused so that closed meetings could occur. He also attached a copy of the August 2007 council meeting agenda, which stated that the council would convene into a closed executive session prior to the open meeting. Gordon prayed for relief in the form of, among other things, a court order requiring the City to produce agendas, tapes, and records from all closed meetings held between January 1, 1990 and November 13, 2007.

In its plea to the jurisdiction, the City did not seriously dispute that it conducted closed meetings.3 Instead, it argued that any claimed violations of the charter were moot because the charter provision requiring all meetings to be open was amended. The City argues that all of Gordon's requested relief was mooted by the amendment and focuses its arguments on Gordon's request for injunctive relief. The City did not address how Gordon's request for agendas, tapes, and records from past closed meetings allegedly held in violation of the city charter was also mooted by the amendment.

We addressed a similar situation in City of Farmers Branch v. Ramos. In that case, the plaintiff alleged that the city enacted two ordinances in violation of the Texas Open Meetings Act. City of Farmers Branch, 235 S.W.3d at 465. The plaintiff alleged that the city deliberated and decided both ordinances in closed meetings. Id. The city repealed the ordinances and argued that the repeal mooted the plaintiff's claim. Id. at 469. But the plaintiff had also requested the certified agenda from the closed meeting. Id. Quoting the Texas Supreme Court, we stated that the repeal of an action done illegally does not vindicate the right protected by the Texas Open Meetings Act: “Our citizens are entitled to more than a result. They are entitled not only to know what government decides but to observe how and why every decision is reached.” Id. at 470 (quoting Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex.1990)). We concluded that a request for a declaration that the city violated the statute, coupled with the potential remedy involving the certified agenda from the closed meeting, established that the issue was not moot. Id. See Kessling v. Friendswood Indep. Sch. Dist., No. 14-07-01063-CV, 2009 WL 3571538, at *5 (Tex.App.-Houston [14th Dist.] Nov. 3, 2009, pet. filed).

In this case, Gordon sought declaratory relief that the City violated its charter by holding closed meetings and requested agendas, tapes, and records from those meetings. We conclude that Gordon's request for declaratory relief, coupled with the potential remedy involving records from the closed meetings, establish that the claim is not moot. See City of Farmers Branch, 235 S.W.3d at 470. We resolve the City's first issue against it.

In its second issue, the City argues that even if Gordon's claim is not moot, he does not have standing to assert it. The City contends that Gordon must have been adversely affected by an action taken in the closed meetings to have standing to sue. We disagree.

In Shackelford v. City of Abilene, the Texas Supreme Court held that a citizen has a right to attend any meeting of the city board and to enjoin any board meeting that might be closed in violation of the city's charter. 585 S.W.2d 665, 668 (Tex.1979). The court also held that a citizen is entitled to inspect the minutes from any meeting that was closed in violation of the city charter. Id. Under Shackelford, Gordon's status as a citizen of the City gives him standing to complain about the City's past violations of its charter and entitles him to request relief in the form of minutes or other records from the closed meetings. See id.; City of Farmers Branch, 235 S.W.3d at 469-70. We resolve the City's second issue against it.

In its third issue, the City argues that even if Gordon's claim is not moot and he has standing to assert it, the City has immunity from liability for attorneys' fees awarded under the declaratory judgment act. Again, we disagree.

Governmental immunity does not bar a declaratory judgment action unless the plaintiff seeks a declaration of the government's liability for money damages. Seals v. City of Dallas, 249 S.W.3d 750, 757 (Tex.App.-Dallas 2008, no pet.). We have reviewed the record in this case, and Gordon does not seek money damages from the City; he seeks only an award of attorneys' fees in connection with his declaratory judgment action. A municipality waives governmental immunity under the declaratory judgment act when attorneys' fees are sought in suits to construe legislative pronouncements, including provisions of city charters. See Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994); Seals, 249 S.W.3d at 757. See also Tex. Natural Resources Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 859-60 (Tex.2002) (discussing Leeper ); Wood v. Walker, 279 S.W.3d 705, 710-11 (Tex.App.-Amarillo 2007, no pet.). We resolve the City's third issue against it.

We conclude that the trial court did not err by denying the City's plea to the jurisdiction on these grounds. We affirm the trial court's order denying in part the plea to the jurisdiction.

FOOTNOTES

1.  The trial court dismissed Gordon's claims for violations of the Texas Open Meetings Act, his request for injunctive relief, and all claims alleging violations before October 26, 2004.

2.  The City raised additional arguments in its plea to the jurisdiction that were granted and are not part of this appeal.

3.  The City argued that the amended “Charter provision abrogates the arguably absolute language existing in the prior Charter․”

Opinion by Justice LANG-MIERS.

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