Byron C. Cook, Chairman of the House Committee on State Affairs, in his official capacity as State Representative; David Sauceda, Sergeant-at-Arms for the Texas House of Representatives; and Steve McCraw, in his Official Capacity as Director et al., Appellants v. Amy Hedtke, Appellee

Reset A A Font size: Print

Court of Appeals of Texas, Austin.

Byron C. Cook, Chairman of the House Committee on State Affairs, in his official capacity as State Representative; David Sauceda, Sergeant-at-Arms for the Texas House of Representatives; and Steve McCraw, in his Official Capacity as Director et al., Appellants v. Amy Hedtke, Appellee

NO. 03-17-00663-CV

Decided: April 06, 2018

Before Chief Justice Rose, Justices Goodwin and Field

MEMORANDUM OPINION

This is an interlocutory appeal from the trial court's order denying a plea to the jurisdiction in appellee Amy Hedtke's lawsuit seeking relief under the Texas Open Meetings Act (TOMA) and the Texas Constitution. Hedtke sued Byron C. Cook, Chairman of the House Committee on State Affairs, in his official capacity as State Representative; David Sauceda, Sergeant-at-Arms for the Texas House of Representatives; and Steve McCraw, in his Official Capacity as Director (collectively, “State defendants”), after Hedtke was removed from a legislative committee meeting for refusing to cease “livestreaming” the proceedings.1 Because we conclude that this case is moot, we reverse the trial court's order and render judgment dismissing the case.

Background

The Texas House Committee on State Affairs (HSA committee), chaired by Representative Byron Cook, held a public meeting on March 22, 2017, on the grounds of the Texas Capitol. Signs posted both inside and outside the meeting room notified attendees that “Only those with Capitol media credentials will be permitted to film or record in this committee hearing.” Hedtke, who does not hold Capitol media credentials, attended this meeting with the intent to testify and livestream the proceedings.

Before the HSA-committee meeting was called to order, Hedtke began livestreaming on “Facebook Live” from inside the meeting room.2 During that time, Hedtke was twice advised, once by a Department of Public Safety (DPS) Officer and the other time by an unidentified person, to stop recording the meeting or she would be removed. Hedtke refused both times. Once the hearing had begun, a DPS officer and the House Sergeant-at-Arms approached Hedtke and asked her to stop recording. Hedtke refused, explaining that she had the right to record the proceedings under a TOMA provision that allows members of the public to record open meetings of governmental bodies. See Tex. Gov't Code § 551.023(a). Two DPS officers then removed Hedtke from the meeting room and placed handcuffs on her. Hedtke was told that she would not be arrested if she left the Capitol grounds voluntarily, but she declined and was later charged with criminal trespass.3

A few months later, in early July, Hedtke filed the underlying suit against the State defendants, alleging that they had violated the TOMA and Article 1 Section 8 of the Texas Constitution “by establishing and enforcing an unconstitutional and illegal rule or policy prohibiting individuals lacking a Capitol Media Credential from recording public hearings of a Texas House Committee.” See Tex. Const. art. I, sec. 8 (“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”); Tex. Gov't Code § 551.023(a). Hedtke requested a writ of mandamus directing the State defendants “to follow the Open Meetings Act and prohibit them from interfering with citizens who are peacefully recording or live broadcasting open meetings.” Hedtke also sought temporary and permanent injunctions enjoining the State defendants “from enforcing the no-recording rule and from establishing any such rule that conflicts with [TOMA section] 551.023 and the Texas Constitution.” Finally, Hedtke sought nominal damages and two categories of attorney fees: (1) attorney fees available to a prevailing party under TOMA, see Tex. Gov't Code § 551.142(b); and (2) attorney fees as damages that she incurred in defending against the criminal charges and her attorney fees for prosecuting the civil case. The State defendants responded by challenging Hedtke's entitlement to an injunction and by asserting a plea to the jurisdiction.

During a public hearing of the HSA committee held on July 19, 2017 (during the special session called by Governor Abbott), Cook changed the HSA Committee's policy to allow “non-disruptive” recording of committee proceedings by persons attending the meeting. The signs advising that only media-credentialed persons could film or record the committee's proceedings were removed. On July 26, 2017, Hedtke attended and livestreamed, without interference, an HSA-Committee meeting.4

The State defendants supplemented their plea to the jurisdiction, arguing that the trial court lacked jurisdiction over Hedtke's claims because those claims had been mooted by the HSA Committee's actions. Specifically, the State defendants asserted that Hedtke got the relief she requested when the HSA Committee changed its policy to allow all “non-disruptive” video and audio recordings. In the alternative, the State defendants asserted that Hedtke's claims were barred under sovereign immunity. Hedtke responded to the plea and also amended her petition by, among other things, limiting her request for permanent relief to an injunction prohibiting the State defendants “from preventing individuals from recording hearings of any house committee; establishing any new rule contrary to the Open Meetings Act; or enforcing any policy by removing or arresting any individual from public committee hearings merely because they are recording a hearing.”

After a hearing on the matter, the trial court issued an order denying the plea to the jurisdiction. It is from this order that the State defendants now appeal.

Discussion

The State defendants challenge the trial court's order denying their plea to the jurisdiction in two issues on appeal, asserting that the trial court lacks jurisdiction over Hedtke's claims because (1) the case was mooted in July 2017 when the HSA Committee's policy was revised to allow recording and broadcasting by any attendee; and (2) the facts pleaded by Hedtke do not invoke the limited waiver of the State's sovereign immunity under TOMA. Because we agree that there is no longer a live controversy, we need only address the State defendants' mootness argument.

“[A] court cannot decide a case that has become moot during the pendency of the litigation.” Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012) (citing National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999)). A case becomes moot if, since the time of filing, there has ceased to exist a justiciable controversy between the parties—that is, if the issues presented are no longer “live,” or if the parties lack a legally cognizable interest in the outcome. Id. (citing Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001)).

All of Hedtke's claims and requests for relief here stem from the HSA Committee policy prohibiting all but Capitol-credentialed media from filming or recording committee meetings, which policy Hedtke claims violated the TOMA. See Tex. Gov't Code § 551.023(a) (“A person in attendance may record all or any part of an open meeting of a governmental body by means of a recorder, video camera, or other means of aural or visual reproduction.”). That policy has since been revised to allow non-disruptive recording by meeting attendees, see id. § 551.023(b) (TOMA provision allowing governmental bodies to adopt “reasonable rules to maintain order at a meeting, including rules relating to: (1) the location of recording equipment; and (2) the manner in which the recording is conducted”), and importantly, Hedtke has attended and livestreamed an HSA Committee meeting since the change in policy.

Given these changes, there is no longer a live issue for a court to resolve—i.e., there is no action on the merits that a court could take that would affect the parties' rights or interests. See Heckman, 369 S.W.3d at 162 (“[A] case is moot when the court's action on the merits cannot affect the parties' rights or interests.”). A decision simply addressing whether a TOMA violation had occurred in the past would have no practical effect on the parties here. See In re Smith Cty., 521 S.W.3d 447, 454–55 (Tex. App.—Tyler 2017, orig. proceeding) (denying mandamus petition as moot because granting requested relief would have no practical effect and would “only amount to an advisory opinion”); Cornyn v. City of Garland, 994 S.W.2d 258, 267 (Tex. App.—Austin 1999, no pet.) (holding that TOMA claims were moot as to past meetings); Brownsville Indep. Sch. Dist. Bd. of Trs. v. Brownsville Herald, 831 S.W.2d 537, 538 (Tex. App.—Corpus Christi 1992, no writ) (dismissing TOMA dispute as moot where the allegedly improper meeting “has been held” and “[w]e do not see how any decision ․ about the propriety of that meeting can be anything but advisory”). Further, we have previously held that a decision regarding possible future TOMA violations would result in an advisory opinion “that lies outside [our] judicial power” because doing so would require speculation and conjecture regarding the nature of the possible future violation. Cornyn, 994 S.W.2d at 267.

On appeal, Hedtke does not dispute that her claims are moot, but argues that we should apply the “capable of repetition yet evading review” exception to the mootness doctrine. See General Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990) (doctrine applies only when “the challenged act is of such short duration that the appellant cannot obtain review before the issuebecomesmoot”). Wehavepreviouslyrefusedtoapplythisexcept violations:

Concerning the apparent mootness of the News' claim relating to notices of past meetings, the News argues the doctrinal exception made for acts that are “capable of repetition yet evading review.” We believe the exception is inapplicable. TOMA itself provides that any “interested person, including a member of the news media,” has the right of immediate judicial review by way of an application for writ of “mandamus or injunction to stop, prevent, or reverse a violation or threatened violation” of the notice requirement. Tex. Gov't Code § 51.142(a). If a violation evades review, the reason does not lie in the inherent nature of the allegedly wrongful act. It lies rather in the failure of the “interested person” to invoke the immediate remedy expressly provided by the legislature. It is not contended that the statutory remedy is inadequate for the purpose.

Cornyn, 994 S.W.2d at 266–67 (addressing notice violations).

Moreover, this exception requires that there be a reasonable expectation that the same action will occur again if the issue is not considered. Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999); see also City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (“[T]he capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.”). There must be a “reasonable expectation” or a “demonstrated probability” that the same controversy will recur involving the same complaining party. See Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam). The mere physical or theoretical possibility that the same party may be subjected to the same action again is not sufficient to satisfy the test. See id., 455 U.S. at 482. There is nothing in the record before us to suggest that these hurdles can be overcome and, in fact, the record here indicates that the policy has been changed to allow recording.

Hedtke also asserts that her case is not moot because of her claims for damages and attorney fees. But State officials sued in their official capacities, as Hedtke has done here, are immune from money damages unless immunity has been waived. See, e.g., Texas A&M Univ. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007). TOMA authorizes mandamus and injunctive relief, and damages resulting from knowing disclosure of certain information from closed meetings, but it does not authorize a claim for Hedtke's nominal damages. See Tex. Gov't Code §§ 551.142(a) (mandamus and injunctive relief), 551.146(a)(2) (disclosure of information from closed meeting). For the same reason, Hedtke's claims for attorney fees as damages are barred. And to the extent that TOMA does authorize attorney fees, it does so only for a prevailing party in a TOMA action, not a separate criminal proceeding. See id. § 551.142(b) (“The court may assess costs of litigation and reasonable attorney fees incurred by a plaintiff or defendant who substantially prevails in an action under [section 551.142(a).]”). Finally, Hedtke's claim for attorney fees does not survive given that her underlying claims are moot. See id.; Texas State Bd. of Veterinary Med. Exam'rs v. Giggleman, 408 S.W.3d 696, 705 (Tex. App.—Austin 2013, no pet.) (holding that plaintiff's claim for attorney fees under Texas Public Information Act could not prevent mootness “because it became impossible for [plaintiff] to satisfy [PIA]'s ‘substantially prevail’ requirement once [plaintiff's] mandamus claim became moot”) (citing Gattis v. Duty, 349 S.W.3d 193, 201–02 (Tex. App.—Austin 2011, no pet.)).

We sustain the State defendants' first issue.

Conclusion

Having determined that Hedtke's case is moot, we reverse the trial court's order and render judgment dismissing the case.

Reversed and Rendered

FOOTNOTES

1.   The parties agree that “livestreaming” is a phrase used to describe the process of broadcasting or streaming live video and audio over the internet.

2.   Hedtke's recording of the March 22, 2017 HSA meeting is currently available at https://www.youtube.com/watch?v=r5gwfMVfum0&t=420sandat https://www.youtube.com/watchv=DE20epNSQ3A.

3.   Hedtke was also arrested for resisting arrest, but that charge was later dropped. According to the parties' briefing, the criminal-trespass charge remains pending.

4.   On July 25, the trial court granted a temporary injunction prohibiting the State defendants from “preventing or unreasonably impairing [Hedtke] from recording ․ open meetings of any committee of the Texas Legislature chaired by Defendant Cook.” The State defendants appealed the temporary injunction, but after it expired on its own terms, we dismissed the appeal as moot on the State defendants' motion. See Cook v. Hedtke, No. 03-17-00535-CV, 2017 WL 4899022 (Tex. App.—Austin Oct. 27, 2017, no pet.) (mem. op.).

Jeff Rose, Chief Justice