*1 prosecutor's argument on applicable
punishment was directed the court. compliance
Since there was no substantial 26.13,
with art. no harm need be shown.
Whitten,
that the was aware of the conse-
quences plea his he his when entered
plea guilty. On contrary, the record
affirmatively appellant shows
made aware that he could assessed a
рunishment twenty years. no more than effect, appellant received a false
admonishment from the court. I would that,
hold such admonishment when com- twenty-five year
bined with the sentence appellant’s right
constituted a violation of process due of law under the U.S. Con- Alabama, Boykin v.
stitution. 395 U.S. (1969). 89 S.Ct. L.Ed.2d WORTH, Appellant,
CITY OF FORT GROVES, Appellee.
Ken
No. 2-87-017-CV. Appeals Texas,
Fort Worth.
Feb.
Rehearing Denied March
of Fort (“City”); entering Worth into being arbitrary capricious act duty fiduciary breach part Court; of the Commissioners’ lease as a sale. judgment part, re- is affirmed *3 part.
versed and rendered in attorneys are the the We indebted to for parties, City Ken Groves and the of Fort Worth, attorneys and for the amicus curiae, the Greater Fort Worth Hotel-Mo- Association, Worth, tel Fort Downtown Wood, City Atty., William W. Asst. Dal- Inc., Municipal League Texas and Worth, Gandy, Atty., ton Asst. Dist. Fort Association, City Attorney’s Texas for their appellant. excellent briefs. Hill, Heard, Oneal, Goetz, Gilstrap & THE HISTORY P.C., Webster, Gilstrap, Frank Ned Marcia County In approved Tarrant voters Wise, Arlington, appellee. the issuance of 16.5 million gen- dollars of obligation portion
eral A bonds. of funds from the sale bonds was used County build the Tarrant Convention OPINION (“TCCC”) Center remainder LATTIMORE, Arlington, Justice. Turnpike build Stadium in Tex- as. Groves, Appellee, Ken filed the instant pursuant
lawsuit ap- the Texas De- Uniform In the Commissioners' Court claratory Act, Judgments $2,000,000 proved TEX.CIV.PRAC. the issuance of First seq. & REM.CODE Mortgage special ANN. sec. 37.001 et revenue bonds for the (Vernon 1986), seeking declaratory a judg- parking facility' adjacent of a construction permanent injunction ment and TCCC; payable invali- these bonds are not agreement date proceeds, from between Tarrant Coun- from tax but the revenue ty Worth, City signed is- parking Fort Au- area that the bonds were gust 1986, by County Tarrant sued construct. County
“leased” the Tarrant Convention approved 20.35 million voters appellant, City Center to of Fort Worth. obligation bonds, general 11.5 dollars trial, non-jury After million of which went into court below dollars TCCC. void, agreement general declared the unpaid entered The total balance obli- permanent injunction against gation is defend- bonds attributable to the TCCC $8,250,000. attorneys’ against ants awarded fees defendants, jointly severally. all becoming an By was increas- TCCC County thirty-six Appellant points asserts of er- financial drain Tarrant A attacking (“County”). appointed ror committee trial court’s determina- Moncrief, standing; Judge sufficiency by County Mayor tion of Mike of the evi- Worth, dence; compliance Open Meetings with the and the head of Fort Worth Fort Act; compliance purpose requirements; With bond Chamber Commerce. having representation of the trial court the lease from broad TCCC, gift; City lending of credit areas of interest the committee Judgment capacities, County, Court in their official entered Tarrant sioner’s the Texas, City County City Only Worth. of Fort Tarrant Commissioner’s Fort Court, County appeals. of the Worth members Tarrant Commis- following: Tilley taxpayer Rice as and is a County,
consisted of Tarrant committee; appointed by chairman Texas. Court, Judge Mike the Commissioners’ County, 2. Defendant Tarrant Texas Moncrief; Stovall, mayor S.J. former duly-created political is a subdivision of Watson; Arlington, replaced by later O.L. the State of Texas. Worth, Anderson; Mayor from Fort Dick 3. Defendant Tarrant Com- Bolen; Williams; Bob Councilman Bert Court, by missioners of the stat- virtue Newkirk, replaced upon Dick Councilman Texas, given of the State utes Vance; from his death Councilman Estil charged care, responsibility Ad- the Tarrant Convention Center control, management of the affairs Board, appointed visory by the Commissioners, of Tarrant Texas. Billy chairman Farrar McMillan; from the former chairman John Worth, 4. Defendant of Fort Commerce, Jodie Fort Worth Chamber of municipality duly-incorporated Texas is a *4 Stephenson; and from the Grant and John County, in situated Tarrant Texas. Fund, Special and Visitors Convention “A” 5. Exhibit to Plaintiffs attached and Don chairman Curtis Frazier (and previous Amended all Fifth Petition Henderson. stipulated by parties to petitions), was all committee, an After this base there was and the Minutes copy a trae correct comprised staff committee additional meeting of of the Commissioners Court municipalities: various members from the 25, 1986, August and correct and a true Auditor; Benson, Hers- County Jack Bob Lease copy of the Center “Convention Worth, hert, Managеr City of Fort later Agreement” to said Minutes attached Harmon; Jeanette, Doug replaced by Mark (hereinafter “Agreement”). Director and of the Convention Executive The bulletin in the basement 6. board Bureau; Magness, of Don Will Visitors and County McAlis- the Tarrant Courthouse Rogers Complex; Memorial Cíete ter, County County Director Tarrant Convention floor of the Tarrant the fifth Shelton, Center; Bill President of the places not Building Administration were After Fort Worth Chamber of Commerce. general public readily accessible to the agree- reviewing problems, the lease 21, August August times on the dates all proposed. ment before court was 23, 24, August 22, August August provided City would 25, The lease that 1986.
assume, opera- behalf agenda for The 7. notice TCCC, for a responsibility of the tional meeting Commissioners’ Court $2,000,000 thirty years, including period of not Monday August was performed within improvements to be gener- readily place in a accessible agreement years. The lease the next two hours least 72 public at all times for at al provided City that would use also time of preceding the scheduled TCCC, personal parking its facilities meeting. solely public purposes. property, Tarrant Neither Defendant 8. for the responsible remain would ob- City of Fort Worth nor Defendant $8,250,000 remaining principal balance mar- the fair appraisal of either tained an existing bond indebtedness. prop- Center Convention ket value THE TRIAL therein, interest erty, any property ofor trial; parties jury Both waived any inter- appraisal of the value or an The trial plaintiff. found for the court in said est, including interest a leasehold findings of fact following court issued Agree- entering the prior to property, conclusions of law: 25, 1986. August on or about ment OF FACT FINDINGS Agree- in the rental 9. The amount rental” “adequate ment not who 1.Ken Groves an adult citizen is property. of that Drive, Arlington, Tex- the use at 706 Vail resides remaining 10. The feasible 3. principle sovereign economic immuni- years. applicable life the Convention Center is 30 ty to this suit. 11. This 4. Court finds that the Commis- The action of the Commissioners August fiduciary sioners Court breachеd its Court on duty which the entering Agreement. into Commissioners Court entered into the Agreement Worth, of Port hereby The Court finds void, null as a of: violation Article Court, entering Commissioners (Vernon’s 6252-17 Tex.Rev.Civ.Stat.Ann. Agreement complied into the has not Supp.1987); Article 5421c-12 Tex.Rev. (1) requirements the bond under its (Vernon’s Supp.1987); Civ.Stat.Ann. Arti- 17, 1968, (2) order of June the cove- (Ver- 1269j-4.2 cle Tex.Rev.Civ.Stat.Ann. nants of the revenue bonds which were Supp.1987); non’s Article 2372d-3 Tex. paid by to be parking revenues from the (Vernon’s Supp.1987); Rev.Civ.Stat.Ann. facility. Article Section of the Texas Consti- 13. This Court further finds that un- tution; Article Sections 3 & 7 of permanent injunction less is entered the Texas Constitution. irreparable will harm occur. years 5. The lease for 30 of the Con- hereby The Court finds Plain- personalty vention Center and/or obliged tiff legal to obtain services is, fact, within the Convention Center Hill, Heard, from the law firm of Oneal a sale of said property. [sic], Gilstrap & Goetz in this cause and *5 6. lease the of Convention Center the Court further finds that the fees personalty and the therein for $30.00 charged by said firm were and rea- are ($1.00 per year years) gift for 30 is a to in Texas, sonable fees County, Tarrant City the of Fort Worth. and the Court further finds that County’s continuing payments 7. The spent hours and the work done on the bonded indebtedness are “lend- necessary firm were the preparation ing City. credit” to its of this case. The Court further finds necessary Court, that reasonable and attorneys’ 8. The Commissioners who $40,000 fees in (and are the amount of holds the Convention Center cause, county-owned property) the trial this in an addi- trust $10,000 tional in the event this cause is residents of Tarrant owes fidu- ciary manage, appealed duty to the Texas to control and dis- Appeals; Court of pose of in a $5,000 an said Convention Center man- additional in the event that keeping in ner with that trust. sought Supreme writ error is to $5,000 Court of Texas and an additional 9. The actions of the Commis- in Supreme writ to event of error Agree- entering in into the sioners Court granted. Court of Texas is arbitrary capri- constitute and ment an agreement
cious action thus said void ineffective. CONCLUSIONS OP LAW remedy adequate 10. There is no subject jur- This Court has matter law for Plaintiff. isdiction jurisdic- over action and has 11. Plaintiff is entitled to the relief he declaratory tion to judgment enter a re- seeks. garding whether the Commissioners to reason- 12. Plaintiff is entitled his authority Court was without to enter into necessary attorneys’ fees. able purported agreement ques- in jurisdiction injunc- tion and has to order PUBLIC STANDING tive relief. first, second, points standing By Plaintiff Ken and third Groves has its error, appellee bring appellant
to contends that this suit. standing bring present did not have prived of the opportunity to argu- hear the suit; taxpayer, appellee that as a others, con, ments and pro must views of allege, expressed statutory absent at the authority, inju- might or have expressed response been ry damage presenta- or to his other than as a member of tion. The deprived Commissioners were general public; appellant and that does give elements and take open of an standing not have Open under the Meet- meeting. possible It is there were others ings ofAct TEX.REV.CIV.STAT.ANN. art. might who have availed themselves of the 6252-17, (Vernon Supp.1988),2 sec. 3 in con- opportunity participate if the notice re- travention of the trial court’s conclusions quirements had met. been of law. may courts not interfere with the brings this suit as a citizen and discretionary political or decisions of the City Arlington, resident of the Tarrant governmental bodies. propose We do not County, alleges Texas. He taxpay- he is a to do so. The citizen is the politi- smallest er of Tarrant Texas. this ca- cal unit of the democracy whose voice pacity capacities, complains he of acts of guide should quasi-legislative be a bod- the Commissioners’ City. ies such as the Commissioners’ Court. The We standing believe that Ken Groves’s legislature has decreed that such units maintain a suit opportunity must have an to hear categories; falls into public two his heard. We should enforce such It decree. standing Open Meetings Act, under legislature is doubtful that intended 6252-17, article private and his any busybody should have access to standing alleged injured taxрayer. as an prevent the courts undo or the acts of 3(a) Open Meetings Section Act county city governments, if even unlaw- states “any person, interested includ- concept “standing.” ful. Hence the media, bona fide members of the news easy concept open It is an the courts commence an action either manda- persons been, fact, injured who have injunction mus or purpose governmental by action units the tort *6 stopping, preventing, reversing viola- or breach of contract sense. It is not so tions or threatened by violations of this Act easy require- the breach is of a notice when governing members of a body.” TEX. ment. 6252-17, REV.CIV.STAT.ANN. art. sec. 3(a) original act did not Section 3(a). portion including reporters contain the as purpose primary of the Act is that a persons,” nor did “interested it contain the meeting such as the one involved here is present by last action taken sentence “[A]n required “open public.” to be Its to the governmental body in of this a violation provisions have reinforced from time been Compare Act is TEX.REV.CIV. voidable.” legislature. to time the To afford the 6252-17, 3(a) (Vernon STAT.ANN. art. sec. “public” the opportunity to attend such 1979). against govern- The historic route meetings heard, stringent to hear and be by way action was of mandamus or mental requirements imposed. notice were These Standing to Secure Ju- Jaffe, injunction. met, requirements were not as we will see. 2), (pts. 1 dicial Review & 74 HARV.L. deprived opportuni- Groves has of been his 1265, 1314, 255 REV. 75 HARV.L.REV. Commissioners, ty present at the (1961). the eyes In the of the courts and they where took the action of legislature not sufficient. Access that was complains, he very which the views ex- now had to the courts to set aside be pressed in of this Act. petition. in his He has been de- actions taken violation herein; tried, pertinent cited the 2. We note that at the time this case was of article 6252-17 opinion the trial court had a parts before it Vernon’s Statute this of the statute cited within pocket part with an earlier date. The contents since 1979. have not been amended supplement wording of that are identical to the
913 Appellant alleges only Com’n, that this statute v. Railroad 633 823 S.W.2d injunctions prevent (Tex.1982). hand, authorizes future vi- theOn other of failure Act, olations of the provide City urge does not the in limine the matter lack of injunctive subsequent standing part relief from activities of on the of Groves does not in necessity are violation of the Act. We the of establishing waive disagree. If appellant’s allegations standing were this to maintain this If suit. true, legislature’s then the of standing statement Groves has no this to maintain suit, urge. “threatened violations” would be ineffec- controversy he has no case or unnecessary. Nonetheless, tive and Develo-Cepts, City See Inc. v. Galves of probable ton, view of the lack of demonstrated (Tex.App S.W.2d . —Hous irreparable injury, permanent 1984, writ). the injunc- However, ton no [14th Dist.] inappropriate. tion standing may The decision that lack of not raised public protec- lease void is sufficient time appeal. Indus., first Texas tion. say S.W.2d at 823. We are able to judge triаl his permit abused discretion in In reviewing taxpayer’s standing ting filing a late and consideration of nature, a suit general maintain of plea City. abatement rule in Texas taxpayer required is that a “person aggrieved” person be a or a who special has a interest the matter. Scott ACT OPEN MEETINGS Adjustment, Board Appellant’s points of error four (Tex.1966). Special interest is most com- primarily nine contend the did not monly imposition shown the adverse comply Open Meetings fail to Act City tax. West Lake Hills v. State thus, agreement was not Austin, Ex. City Rel. Appellant argues void. (Tex.1971). fact and conclusions of law which refer to Groves, The interest of though even County’s Open adherence to Meet- slight citizen, as an taxpayer affected are, ings respectively, factually Act insuffi- coupled magnitude of the need to law, well as cient as matter protect open meeting concept great weight preponderance allegations of if impropriety, even lat- evidence. ter eventually substantiated, are nоt is suf- specifically, appellant More maintains public “standing” ficient for the mainte- requirements that the adhered to the portion nance of this of the suit. We will following Open three sections “private” defer discussion standing until Meetings Act: opinion; later in the it necessary is not *7 (a) the Sec. 3A. Written notice of disposition Therefore, the of this issue. we date, hour, subject place, and each of appellant’s points one, overrule error meeting by governmental body a held .they two and three appellee’s as relate to given meeting be shall before standing challenge propriety of no- require- prescribed by this section. tice Open Meetings under the Act. prescribed by for this section ment notice WAIVER apply not to matters about which does reply Appellee’s points specific nine factual information or a recita- error existing argue policy and ten in appellant has tion of is furnished waived inquiry made standing, by response issue a lack of to an at such failure meeting, inquiry made plea prior file a verified in such is abatement whether general public by by trial. The matter is member of the or “standing” not the a governmental body. “capacity.” City’s plea same as member of the in a deliberation, discussion, or required abatement is decision Any not to be verified Procedure, respect subject under the Texas about which Rules of Civil rule to a inquiry 93. See made shall limited League Texas Indus. be Traffic place governmental
proposal subject body, give by such on the notice agenda subsequent meeting telephone for a telegraph any of such or me- news governmental body requesting has dia which notice such notice and consent- in provided compliance pay any expenses with this and all incurred been by governmental body providing Act. in special provi-
such
notice. The notice
legislative
meetings
sions for
committee
(d)
governmental body
county
A
shall
provided by
shall be as
the rules of the
posted
have
notice
on a bulletin
a
board
house and senate.
place
pub-
located at a
convenient to the
6252-17,
TEX.REV.CIV.STAT.ANN. art.
in
county
lic
courthouse.
added).
(emphasis
sec. 3A
provisions
The content of these
(h)
post-
meeting
Notice
a
must be
gov
significant. Any
by
actions taken
a
place readily accessible to the
ed in a
meetings
entity
ernmental
where the
general public at all times
at least
violated, subject
requirements
Act’s
were
preceding
72 hours
the scheduled time
by
judicial
those actions to
invalidation
except
of a
meeting,
that notice
adversely
affected
such actions.
those
board, commission,
meeting of a state
City
Lower
Riv. Auth. v.
See
Colorado
department,
having
or officer
statewide
(Tex.
Marcos, 523 S.W.2d
San
jurisdiction, other than the Industrial Ac-
1975);
Kingsville,
Garcia v.
governing board of
cident Board or the
Christi
(Tex.App. Corpus
education,
higher
must
an institution
—
1982, writ).
legislature add
no
In 1987the
Secretary of State for
posted
be
3(a) of article 6252-17 the
ed to section
preceding
day of
days
at least seven
govern
by a
sentence
action takеn
“[a]n
meeting.
emergency
or
case
in
of this act is voida
body
violation
mental
shall
urgent public necessity, which
be
as it
ble,” being recitation of the case law
a
notice,
in
shall
clearly identified
it
be
of the Commissioners’
at the time
stood
posted
if
sufficient
the notice
two
meeting
question.
meeting
is con-
hours before
further, that where
vened. ... Provided
contends that
the evi
Appellant
meeting
a
with notice
has been called
findings that
support
not
dence does
posted in accordance with this
thereof
meeting
August
were
for the
notices
subsection,
subjects may
additional
place readily
accessible
posted
meeting by
agenda
added to the
for such
times,
prior to the
72 hours
public at all
notice,
posting
supplemental
in which
3A(h) of
required by section
meeting, as
necessity
emergency
urgent public
the Act.
requiring consideration of such additional
posted
The notice
expressed.
In the
of an
subjects is
event
(ground
in the basement
board
meeting,
event
bulletin
emergency
floor)
County Courthouse
Tarrant
sup-
agenda in a
subject is added to the
meeting in
prior to the
meeting more than 72
plemental
notice
hours
considered
agreement was
the lease
meeting,
it which
emergency
other than
Court.
*8
by
the Commissioners’
supple-
and voted
if
notice or
shall
sufficient
the
be
access
on weekends
During
night and
the
hours before
posted
mental notice is
two
only by permission
notice was
posted
convened,
presid-
to the
meeting is
the
ground
at a
security officer stationed
calling such
of
the member
officer or
officer,
the
Unfortunately
door.
supple-
floor
emergency meeting
posting
or
sheriff,
required to make
also
deputy
agenda for
oth-
mental notice to the
rounds
These
the courthouse.
shall,
“rounds” of
if
therefor con-
request
er
post
his
away from
him to be
cause
pre-
has
would
taining
pertinent information
An electric bell
to time.
time
headquarters of
from
viously
filed at the
been
915
seeking
for the use of
gift
available
those
en-
that
City;
the lease is a
that the
trance from the outside of
building.
the
provide
adequate
did not
rental to
might
long
it
take
Sometimes
as
as ten
the County;
the
and
lease was not
security
minutes for
respond
the
officer to
supported by substantial
benefits
the
away
post
to the bell if he was
from his
County,
the
restricting
further
use of
occasion,
making
persons
his
On
rounds.
public purpose. Appellant
TCCC to a
chal-
seeking
response
the bell would leave
lenges
findings of
the
fact and conclusions
responded.
the officer
before
of
pertain
law which
to violations of TEX.
CONST,
Ill,
XI,
3;
requirement
sec. 52
The notice
art.
and art.
sec.
of article 6252-
3A(a)
section
is to
and
strictly
be
construed.
TEX.REV.CIV.STAT.ANN.
art.
Thornton
v. Smith
now TEX.
(Vernon 1971);
see
S.W.2d
2372d-3
1985),
in GOV’T CODE ANN. secs.
(Tex.App. Tyler
and
319.004
319.-
aff'd
—
part,
part, rev’d in
(Tex.
(Vernon Supp.1988),
being
legally
1986).
appeals’s opinion
of
The court
insufficient,
against
and factually
and
the
Thornton
Colley carefully
Justice
ana
great weight
preponderance
and
of the evi-
the
lyzes
history,
judicially
legis
both
and
dence.
latively,
6252-17,
of article
3A
section
and
through
In its
thirty-first
nineteenth
comes to the conclusion
Act
that the
is to
error,
points
appellant
of
exten-
furthers
construed;
strictly
Supreme
the
Court
arguments
alleging
sive
trial
the
court
Id.
agrees.
Texas
In this instance the
holding:
erred in
pay
failure to
the bond
posting requirements
except
met all
the “at
funds;
from
indebtedness
current
benefits
requirement.
all times”
require
the
While
County;
the
the
no
lease to
breach of
safety
protection
ments of
and
property
TCCC;
fiduciary duty; no sale of
and limit-
may very
justify
public
well
access to a
possession
ed use
and
of TCCC.
building
scrutiny
security person
under
Appellant challenges the conclusions of law
violating
nel without
requirement
pertain
to violations of TEX.CONST.
postings being
readily accessible to the
XI,
being legally
factually
art.
sec. 7 as
public,
notice in
instant
case
insufficient,
great weight
was not readily accessible at all times preponderance of
the evidence. These
and violated
requirements
allegations
in appellant’s
culminate
conten-
the Act.
tion
that the action
the Commissionеrs’
trial court’s
of fact six and
entering
agreement
into the lease
seven are supported by sufficient evidence
arbitrary
was not
capricious.
appellant’s
points
of error
four
through nine are
five,
overruled.
reply points
error
his
six,
eight
propriety
attacks the
We are therefore compelled to sus
lease.
tain the trial court’s determination that the
lease under
attack
void as
act of the
V, section
Article
8 of
Texas
Tarrant
Commissioners’ Court done
gives
“gen
Constitution
courts
district
Open Meetings
in violation of the
Act.
control”
supervisory
eral
over
This
effectively
determination
resolves Commissioners’ Court. TEX.CONST. art.
appeal except
points
error V,
Graham, Scott
8;
sec.
Tex.
concerning
Nonetheless,
attorneys’
fees.
(1956).
legisla
325-26
in view of
Texas Supreme
Court’s ex-
proce
ture has not established a method
pression that
courts
intermediate
ad-
invoking
jurisdiction
appellate
dure
every
dress
issue raised
appropriate
supervisory control
the district cоurt
disposition
the final
appeal,
we com-
by any
stat
over
Commissioners’ Court
ply.
Scott,
utory enactment.
Appellant's of acts of the Commissioners’ points of error cial review ten *9 holding: finding seventeen is the existence of attack trial court’s limited tions; ascertaining substantial or wheth- of evidence recommendations their audi- citizens; arbitrary capri- public-spirited provi- er the action taken was or tor and requiring operate County City cious. sions See Cameron Good Gov- Ramon, 224, maintain the TCCC for the of League ern. v. benefit public; availability City (Tex.Civ.App. funds writ —Beaumont tax”; n.r.e.). from the that no additional tax “bed ref’d result; possible
burden would reduc- The act of the Commissioners’ tion of the tax burden occur. which participating Court in in the lease is not were, doubt, There no additional facts be- subject to the same standard of attack as fore the Commissioners at the time of their provide proper the failure to notice of the decision. That is the function of the Com- approved. which thе Court, gather missioners’ facts supervisory powers district make a decision. judgments court over the of a Commission general With reference to the revenue only ers’ Court can be invoked when such bonds, principal part is in which beyond jurisdiction clearly court acts its unpaid, existing these are Tax rev- bonds. upon by abuses discretion conferred it law. requirements enue to meet the bond obli- County See Yoakum v. Gains gation adversely by not be affected will (1942). 139 Tex. statutory lease. There is no or constitu- principle “No than of law better settled requirement obligation tional that the bond that acts of discretion and of fact be assumed a lessee or that the lease part on the officers to such accruing County consideration to the confided, power including Commission bonds, equal unpaid portion to the Courts, ap ers’ will not be reviewed on principal It a either or interest. is not Castleman, peal.” Tex. Williams City “sham” for the to use a (1922). 247 S.W. complies method that contractual complaint of Groves that it statutes. ex The Commissioners’ Court had City of is unfair to the citizens of the per haustively analyzed studied and its Arlington Arlington purchase a con- problems operating ceived the TCCC. Fort City vention center and the Worth They very were much aware of the limita political a is a matter of to lease center tions of their means of relief. In the ab consideration, judicial. faith, showing it sence of a of fraud or bad showing no in this record that There is document is not for the courts to declare a their dis- the Commissioners’ Court abused conforming language of a lease hav to the cretion, arbitrarily capricious- or acted lease, ing terms to a to be some reasonable ly- thing Particularly else. since it was the appellant’s points desire of the to avail therefore sustain We per provisions through thirty-one of the statute themselves ten of error number mitting complain to seize of the trial they a lease. Groves wishes the extent upon provision as per year rental the lease was $1.00 court’s determination unreasonably Open inade substantial evidence of invalid for other than violation accruing quate consideration that for the Meetings Act. We conclude con- for the lease. Nowhere do the statutes that the lease trial court to determine credit, sale, lending to the term the constitution of Texas refer gift, tract a county super fiduciary duty the Commis- “rental” the matter breach by appel- sioners, of TCCC county property. The Commis unlimited use vision of sioners, pay the current bond judgment, failure to in their considered lant and/or is to im- funds operating loss of from current relief from continued indebtedness for theirs. $500,000 $1,000,000 his discretion annually; properly from the substitute holdings by the trial court findings and opera- The profit remote from chance overall
917 regard against in this are greater Appellant’s first, second and points third weight preponderance part evidence error are overruled in they pertain as manifestly unjust. appellee’s and are public standing See v. Watson to raise non- Prewitt, 305, 815, compliance Open 159 Tex. 320 Meetings S.W.2d 816 Act. (1969) curiam); (per Estate, respect With King’s In re to the revenue bonds out- 662, 660, standing, (1951) points 150 Tex. 244 these S.W.2d 661 of error are sus- curiam). tained (per and we find the trial court erred in entering permanent injunction. PUBLIC OR PRIVATE A STANDING AS TAXPAYER Appellant’s thirty-second thirty-third points pertain of error to the factual suffi- The revenue bonds have no tax ef ciency of the compliance Commissioners’ county taxpayers. fect on See El requirements. with the bond For the rea- Campo Bank, v. South Texas Nat. 200 above, points sons stated these of error 252, (Tex.Civ.App.—San S.W.2d 256 ton An need not be addressed. 1946, 'd). io writ ref security The sole for ATTORNEYS’ FEES the County’s bonded ir indebtedness is an upon, revocable lien pledge first and a Appellant’s points final three of error from, acquired parking revenue sta allege that the trial court abused its discre- underlying tion and realty to the bond awarding attorneys’ tion'in fees trustee, holders their Fort Worth City in that the equitable award was not If National Bank. became un just and was excess of a reasonable pay аble obligations trustee, its to the necessary amount. remedy bank’s would be to enforce its Appellee petitioned pursu- the trial court upon liens the funds obtained from the ant Declaratory Judgments to the Uniform parking station. attorneys’ Act for reasonable fees. See Tax dollars would not pay be utilized to TEX.CIV.PRAC. & REM.CODE ANN. sec. bonds, for these in that has (Vernon 1986). 37.009 The court awarded already complied with require- the bond attorneys’ Ken Groves fees in the amount ments and necessary accumulated all funds $35,000; $20,000 appeal to the Court to fully pay outstanding principal and $10,000 Appeals; application for writ interest on the bonds at scheduled maturi- Supreme Texas; of error to the Court of ty. $5,000 in the event that writ of error is granted.
Finally, 2372d-4, article section enabling statute Declaratory Judg- which allows Section 37.009 provides issue bonds to any proceeding construct coliseums ments Act “in un- auditoriums, chapter, states der this the court costs the bonds shall award following provision: necessary attorney’s contain the and reаsonable and “The hold- equitable just.” er hereof fees as are Id. The right shall never have the grant attorney’s or denial of fees lies with- payment demand money thereof out of court, the discretion the trial and its raised or to be raised taxation.” TEX. judgment appeal will not be reversed on 2372d-4, REV.CIV.STAT.ANN. art. sec. showing (Vernon absent a clear that it abused its 1971). discretion. v. Oake Collin Appellee damages has not shown (Tex.1985). S.W.2d The test special himself, or any damages at all. of discretion is the trial abuse whether weighing We hold that after both the evi guid- court acted without reference to dence findings, favorable to the trial court principles. rules and Downer v. See evidence, and then appellee Inc., all of the has Aquamarine Operators, standing, (Tex.1985); no either private, 241-42 see also Craddock Lines, regard special contest the lease with Bus 134 Tex. Sunshine (1959). parking facility. revenue bonds and the In determining par whether that, Webster testified Ned *11 ticular award for fees attorney’s appellee is excеs 4, counsel for January sive, reviewing may 1987, court draw on expended com his firm had 348 hours and knowledge justices pre-trial mon of the 42 on relating the court minutes matters experience bar; their lawyers judges. regular and as and to the at case his fee was $150 per hour, Espinoza Co., v. but included in charges Victoria Bank Trust his were & services; 816, paralegal 572 S.W.2d he (Tex.Civ.App.—Corpus hourly 828 reduced his 1978, rate to He n.r.e.). writ testified $105. Christi ref’d The court is that the total obligated $36,613.60. value of these services is Web further to look at the entire eight ster estimated hours of light record and to in trial time at view the matter per services, hour for $125 Marsha testimony, Wise’s controversy the amount in appellee's other attorney. Webster and the nature making of the case in its Ann Soward donated their time at trial free ruling. Southland Co. v. Nor Ins. Life charge. Webster further estimated ton, 767, (Tex.Comm’n 5 S.W.2d App. 769 twenty post-verdict additional hours of 1928, holding approved); Commonwealth $2,500. per work at hour equalling $125 Thomas, Lloyd’s Ins. Co. v. 678 S.W.2d attorneys’ Total fees representing ap- for 278, (Tex.App.—Fort 1984, 284-85 Worth pellee $42,157.80, prior appeal are with n.r.e.). ref'd writ $40,000. appellee requesting tes Webster by Factors to be considered these tified that fees trial derived from determining conferences, fact finder in preparation, correspon the reasonable $10,000 attorneys’ ness of the necessary award of fees in dence. was estimated as 1) 2) involved; clude: appeal Appeals, time and labor the Court of with $5,000 case; 3) the nature complexities application needed should an the amount of error filed money Supreme or value of the writ Texas, $5,000 if property involved; 4) or Court of and an interest additional extent granted. such is responsibilities writ by the at assumed 5) torney; employment whether other is Testimony appellant’s showed that three by attorney lost because of under hours, requested attorneys fees for 150 6) taking; resulting the benefits hour, per with the same $125 estimate services; 7) from client contingency appellee’s attorneys, purposes fees as cеrtainty 8) compensation; appeal. the employment whether or for an casual agreement ap- question The in established constant client. See Bras proved by the Commissioners’ on 444, Braswell, (Tex. well v. 476 446 S.W.2d 1986, 13, 12, May May on Civ.App.—Waco 1972, dism’d); writ see incor- 1986. Additional amendments were Morgan 484, Morgan, also v. 657 S.W.2d porated, approved the final draft (Tex.App.—Houston 491-92 [1st Dist.] 25,1986. August originally Ken 1983, dism’d). writ in filed this case district court on Novem- commencing on with trial ber attorney’s The reasonableness of $60,- Appellee January requested supported by competent fees must be evi attorneys' performed fees for 000 in work dence. Great American Insur Reserve prior to trial. Britton, ance Co. v. 406 907 S.W.2d (Tex.1966). In deciding val reasonable alleged involved The case violations services, attorney’s ue of finder of fact provi- and three constitutional four statutes being consider sions, appellee’s allegations facts before it in relation to rendered, peti- original services as well estimates of fifth amended on his based property, their value of all attorneys who testified tion. value indebtedness, $8,250,- Co., Paving Lofstedt, outstanding court. bond Gulf (Tex.1945). S.W.2d court, decision, awarding Supreme find that the trial We Court relied appellee heavily upon Appeals’s the Court of deci- attorneys’ fees to did not abuse its legislative history analyzed sion which Appellant’s thirty-fourth, discretion. thir- Thornton v. Smith 3A(h). of section ty-fifth thirty-sixth points of error are County, (Tex.App. Tyler overruled. — part, part, rev’d in 1985), affd appellant’s points We therefore sustain (Tex.1986). Supreme Court’s two, through thirty- of error three and ten opinion Ap- overrules several Courts one, appellant’s points overrule four *12 holding peals’ only decisions that substan- nine, thirty-four through and thir- compliance procedures tial with notice part ty-six, and sustain in and overrule in required by the Act.2 part appellant’s point of error one. Act, comply county govern- To with judgment We affirm the trial court’s that steps give ment must take five notice: County the lease between Tarrant time, (of date, 1. Post a written notice non-сompli- of Fort Worth is void for place subject and matter of the meet- ance with TEX.REV.CIV.STAT.ANN. art. ing); 17; we further affirm the award of 6252— (at 2. On a bulletin board a convenient grant attorneys’ fees and costs. The of a place); permanent injunction by the court is trial courthouse; county 3. In the aside, judgment set is rendered that appellee nothing regard. take in this place readily At accessible to the 4. times; public at all judgment part, is affirmed in preceding For at least 72 hours part. reversed and rendered in meeting. 6252-17, art. TEX.REV.CIV.STAT.ANN. KELTNER, J., dissenting files a (h) (Vernon 3A(a), (d), Supp.1988). sec. FARRIS, J.,
opinion joins. in which agree parties All the that written notice KELTNER, Justice, dissenting. posted on a bulletin board the Tar- was at least 72 hours County rant Courthouse respectfully Specifically, I I dis- dissent. However, meeting. parties prior to the agree holding majority’s that “readily disagree the notice was whether ample there support evidence to the trial 3A(h) required section accessible” finding court’s of fact that notice of the the Act. meeting requirements did not meet thе Open Meetings the Texas Act.1 testi- us contains the The record before on issue of no- mony of six witnesses Supreme recently Our Court has held tice under the Act. 3A(h) Meetings Open that section requires governmental witnesses, Act that entities county employees, Two both proce- typed literally comply must with the notice notice was testified that the County Thorn- locations at the Act. Smith v. duplicates posted at two dures ton, (Tex.1986). prior to the Commissioners’ 2, In reach- least 72 hours 726 3 S.W.2d 6252-17, Neighborhood Texas Road v. South art. sec. 2. River TEX.REV.CIV.STAT.ANN. (Vernon 551, Supple- (Tex.App.—San Supp.1988). to Sports, 3A I cite the 1988 555 S.W.2d An However, tried, 1986, dism’d); ment. at the time this case Alamo McConnell v. nio writ 470, had it a Vernon’s Statute the trial court before Dist., Heights Sch. 576 S.W.2d Ind. pocket part an earlier date. The content (Tex.Civ.App. writ refd n.r. Antonio — San wording supplement was identical to the Huddleston, e.); Stelzer provisions statute cited. the notice dism’d); Lips (Tex.Civ.App. Tyler writ — tried, section 3 had At the time the case was Trust Dist. v. School comb Ind. School provide act of a not beеn amended to ees, (Tex.Civ.App . —Amaril governmental entity of the Act was in violation n.r.e.). lo writ refd art. voidable. See TEX.REV.CIV.STAT.ANN. 6252-17, (Vernon 3(a) Supp.1988). sec. meeting. copy posted One in courthouse” and the building. “civil courts” Building, buildings Administration where These are connected a two-sto- located, ry
the Commissioners’ Court is closed-in walkway that connects the the other was on a in ground bulletin board floor of Building the Civil Courts the Tarrant Courthouse. This ground tes- with both the floor and basement timony is uncontroverted. of the old courthouse. Groves, appellee,
Ken testified that All open doors to the courthouse are counsel, on advice of he checked the p.m. acces- from 7:00 a.m. until 6:00 Between the sibility posting places to the two p.m. almost hours of 6:00 and 7:00 a.m. week- days day Saturday two months after the action of the Commis- and all Sunday, complains. sioners’ Court of he except walkway doors the north door to the attempted posting to check the security two area are locked for reasons. placеs p.m. Sunday night McCreight 10:30 on a security testified that the rea- locking December. sons for the courthouse included records, protection government of vital attempted Groves testified that he to en- safety county personnel *13 who worked building ter the courthouse the during evening, safety the of citizens main doors on the south side of the build- posted entered who the courthouse to view ing, but that the doors were locked. He notices. any he admitted that did not check other of weekends, eight During evenings the entrances to the courthouse. the a (Groves acknowledged deputy occupies guard he was well sheriff station acquainted walkway with the courthouse he is located in the area. The because which deputy provides security often had business there as a result of his and allows citi- Instead, surveyor.) proceed- work as a he zens with business at the courthouse Building buildings. only ed to the Administration out the two While unlocked, walkway is this across the street. The door to that build- north door to the ing was unlocked. confronted a entrance is the most accessible to build- Groves deputy ing public him sheriff who told that the build- the bulletin board where posted. are was closed.3 Groves did not tell the records deputy purpose that his was to view the building, inside the the notices are Once public Instead, merely notices. he asked to place they are in a a convenient building. five-story walk around the seeking hallway. A citizen ac- basement deputy responded building to the notices is not forced to walk cess closed, reopen morning. but would through any county departments or doors. Instead, only down a any the citizen need walk
Neither Groves nor other witness August hallway directly to the board be- posted on bulletin testified that the notice en- away 80 feet from the posted place readily tween 75 and 1986 was not at a public trance. accessible to the for 72 hours before August meeting. security of McCreight that the testified De- is left to the Sheriff’s McCreight, of Tarrant the courthouse
James Director evenings During the and week- Services, concerning partment. testified un- ends, remains unlocked the north door accessibility to citizens. courthouse making security duty is deputy on less the testimony His does not conflict with that intervals, During these brief McCreight there are rounds. Groves. testified that seeking entry locked. A citizen door is between six and seven entrances to loud activates a a button that actually con- utilize courthouse. The courthouse “night deputy. This alerts the buildings, “old which sists of two known as the bell record, deputy him that the Adminis- point that the told fleet 3. At one in the Groves testified Building than the courthouse deputy tration rather was closed. told him that the courthouse However, testimony to re- closed. he later clarified his clearly sign ny bell” is identified at the does not conflict with that of walkway, McCreight, north entrance to the in- slightly and is different from ring structs visitors to if testimony ground.5 second time no Prince’s on only one appears one within five Murray assigned minutes. Addition- security duty. Dep ally, night enough uty bell is loud Murray testified that he was aware of throughout building. October, heard When the 1985 memo and that it was bell, deрuty guard hears the he or she immediate- in the shack. He stated that most, ly returns to the entrance. any person wanting At there to view the notice on is between a five and ten minute wait. bulletin board was allowed entrance. Deputy Murray further testified that if a Prince, Johnny Captain of the Patrol Di- suspicious requesting citizen acted al vision of the Tarrant Sheriffs De- leged board, access to the bulletin he would partment, testimony also testified. His supervisor contact his to determine what does not conflict with that of Groves or do. McCreight. part, Captain For the most that, testimony Prince's testimony confirms the No witness testified citizen However, McCreight. wishing public Prince further view notices was ever testified that in October of some nine denied access to the courthouse. posting months before the of which Groves evidence, hearing After the trial complains, he depu- sent out a memo to all judge entered two of fact which security duty. ties on The memo dealt appellee, City are attacked of Fort with, “After viewing Hоurs and week-end Specifically, findings Worth. of fact six directory part Notices.” The and seven state: that memo stated: *14 6. The bulletin board basement you any- Effective date are to allow the Tarrant and the Courthouse one wishing posted to public view notices fifth floor of the Tarrant Admin- entry assigned your to areas after hours Building places istration readily were not and on week-ends. Continue to maintain general public to the accessible at all necessary security doing when ac- so 21, 22, August August times on the dates companying them if they should other- 23, 24, 25, August August August your wise be out of view.4 1986. Captain any Prince also testified that public agenda 7. The notice of the person coming after hours or on weekends the Commissioners’ Court required to “state their business” before 25, August Monday posted 1986 was not being allowed guard access. The does readily in place gener- a accessible to the away have discretion to turn a citizen who public al at all times for at least 72 hours guard does not believe access to wаnts preceding the scheduled time of the building purposes looking at the meeting. guard doubt, notices. If the has he is to Worth, appellee, City The of Fort attacks supervisor contact his for further instruc- findings City’s both of fact. The attack is tions. evidence, ground on is no there Deputy evidence, The sixth witness factually support was Sheriff insufficient to Ray Murray, Deputy Murray’s findings findings Jr. testimo and that are instances, However, person viewing Deputy Murray In most in one testified that guard's instance, notices station, not walkway would be out of view of the he returned to the north door guard's as the station is located between hearing after the bell and saw the citizen who hallway 75 and 80 feet down the from the bulle- rang evidently the bell walk around the corner. tin board. There is no indication in the record as to identity date of the occurrence or the Captain Prince testified that he was not aware citizen involved. any deputy occasion in not which a could enough return fast from his to let a rounds wanting entry building. citizen to enter the great weight and preрonder- There are only passages three of evi-
ance
the evidence.
support
dence that tend to
the trial court’s
finding.6 The first is Ken Groves’s state-
determining
In
point,
a “no evidence”
we
ment that
“front
door” of the court-
only
are
consider
the evidence and infer-
house was
at
p.m.
locked
10:30
on Decem-
support
ences which tend to
the trial
14,
ber
1986. The second is Deputy Mur-
finding
disregard
court’s
all evidence
ray’s
occasion,
statement that on one
he did
contrary.
and inferences to the
See Lar-
not arrive back from his rounds in time to
Consultants, Inc.,
v.
son Cook
690 S.W.2d
admit
seeking entry
citizen
unknown
(Tex.1985);
King’s Estate,
Re
the courthouse for
unknown reasons.
Tex.
244 S.W.2d
661-62
third is
testimony McCreight, Cap-
(1951). If
any
there
proba-
evidence of
tain
Deputy Murray
force
Prince and
support
to the ef-
tive
the trial court’s find-
ing,
point
fect that
must
overruled
all doors save one
were locked
finding upheld.
hand,
during
On the other
weeknights
re-
and weekends.
viewing point
which
error
claims there
remainder
evidence estab-
support
is insufficient
evidence
the find-
any
seeking
lished that
citizen
access
ing,
required
we are
to consider all the
legislatively
place
posting
mandated
evidence in the case. See In Re King’s
(the courthouse)
upon
could obtain access
Estate,
the basement. J., FARRIS, joins. County Judge
Significantly, the Smith testified that entrance the Sher- Department
iffs limited. He further was only time access
testified that “readily
bulletin board was accessible and in
easily accessible the manner which a
person right expect have would during in and see notice”
walk the weekdays p.m. before 8:30 and not dur- VISTAS, and Louis GREENLAND INC. Thornton, ing weekends. 690 S.W.2d at Stoler, Trustee, M. Substitute 951. Appellants, testimony by the Smith Judge clearly ample support a find- readily that the notice accessi- was not ASSOCIATES, PLANTATION PLACE However, ble.8 instant the evidence LTD., Appellee. case is far less and falls the suffi- below No. 2-87-122-CV. ciency support finding. evidence Texas, Appeаls my opinion, “readily the term accessi- Fort Worth. ble” does mean immediate access access without mild inconvenience. March Web- “readily” variously is defined word Rehearing April Denied ster’s Third Dictio- New International *16 nary efficiency”; fairly quick as “with fast”; degree
“reasonably a fair “with
ease”; difficulty.” much “without process adopted
These terms define the any governmental taken in provides action did 8. The trial court found that the evidence finding support "sub- that Smith had Act is voidable. TEX.REV.CIV. violation of the stantially complied" provision. 6252-17, 3(a) (Vernon with the notice sec. STAT.ANN. art. Appeals Supreme Court found The Court of Supp.1988). compliance than substantial com- literal rather result, attack acts of a citizen As a pliance is die test. entity grounds of notice governmental on the such cases it is years their enactment. after slight mea- 9. These inconveniences are when suggest who did that a citizen unreasonable major sured inconvenience right may diligently pursue to over- his seek might who be caused to the a citizen grounds. on notice thoroughly pursue turn the action to notices does not posted pursuant access currently to the Act. The Act