557 S.W.3d 93
Tex. App.2017Background
- In January–February 2016 two Donna ISD trustees resigned, creating two vacancies; Lugo and another trustee publicly favored filling them by special election.
- A January 27 agenda (not held) listed both appointment and special election as possible actions; a February 9 agenda posted 72 hours before the meeting listed only calling a special election for May 7, 2016.
- At the February 9 meeting (all five trustees present) Lugo moved to call the special election; his motion was amended orally and the Board voted to appoint two individuals to fill the vacancies. Lugo filed suit three days later under the Texas Open Meetings Act (TOMA) and UDJA.
- The Board sought a declaratory judgment validating the appointments and argued the agenda sufficiently put the public on notice that vacancies could be filled by appointment or election; it submitted an affidavit asserting a reasonable reader would understand both possibilities.
- The trial court denied Lugo’s partial summary judgment and granted the Board’s. On appeal the Board conceded the agenda did not notify the public of appointments and asked the Court to rule the appeal moot and remand attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the February 9 agenda violated TOMA by failing to notify the public that the Board might appoint replacements instead of calling a special election | Lugo: Agenda expressly limited the Board to considering a special election; appointing trustees without prior notice violated TOMA §551.041/§551.043 | Board: Agenda language broadly concerned filling vacancies; not necessary to list every possible consequence; a reasonable reader could understand appointments were possible | Held: Court concluded the agenda did not notify the public of appointments and therefore the Board violated TOMA; Lugo’s issue sustained |
| Whether the appeal is moot given the appointed trustees no longer serve | Lugo: Not moot because he seeks attorney’s fees under TOMA/UDJA, which keeps a live controversy | Board: Moot because appointments are no longer in effect and no ongoing injury; asked for remand on fees only | Held: Not moot — potential entitlement to attorney’s fees keeps the controversy live; court reached the merits |
Key Cases Cited
- Heckman v. Williamson Cty, 369 S.W.3d 137 (Tex. 2012) (justiciability and requirement of a live controversy throughout litigation)
- Allstate Ins. Co. v. Hallman, 159 S.W.3d 640 (Tex. 2005) (attorney’s fees can preserve jurisdiction in declaratory-judgment appeals)
- Camarena v. Texas Employment Comm’n, 754 S.W.2d 149 (Tex. 1988) (UDJA context on live controversies)
- Cox Enters., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956 (Tex. 1986) (agenda must alert reader to topic; need not state all possible consequences but must fairly notify)
- Salazar v. Gallardo, 57 S.W.3d 629 (Tex. App.—Corpus Christi 2001) (special-interest subjects require more specific notice; notices must fairly alert the reader)
- Ward v. Lamar Univ., 484 S.W.3d 440 (Tex. App.—Houston [14th Dist.] 2016) (UDJA attorney-fees argument preventing mootness)