*1 ( n ) May meeting. the records be released iden- Gov’t if Code Ann. tifying § has been redacted? argument, 551.022. This and its statuto information ry was support, presented not to the trial Attorney The General further ar court, and is properly thus not us before gues that the public schedules are informa Tex.R.App. for review. See P. 33.1. Al 26(a) tion because section of one though the trial court did mention the Act allows the if release some records iden making ruling, ruling while its oral was tifying information has been redacted. Act, not based on and it that does not conclusion, To reach that Attorney in the trial appear judgment. that, General if theorized the information pointed by appellant, out howev As names, was “de-identified” to remove the er, if theory even that of recovery was the information within scope Court, Act requires before this that “min Act, subject to disclosure. The Attor- public. utes” to be released to Min ney General suggests the records are (1) required subject utes are state the not they provide excluded informa- unless (2) deliberation, and indicate the result of tion about individual AND members also the vote decision. Tex. Gov’t Code Ann. identity not to hide redactable 551.021(b). Attorney General ar the individual. that, gues during meetings because position language That ignores the clear addressing pension payments schedules phrase the Pension Statute. The “and” requests for benefits were considered Attorney which the General relies does deliberations, during Board’s and be necessarily by any either reasonable those cause schedules have been filed implication require combination fac- minutes, along are equiva tors public the records are “not before being part lent to of the minutes. The information.” The statute contains two Attorney General has directed us to no separate clauses, confidentiality designed result, authority requiring that and we are protect in two records different situa- aware none. (1) tions: public the records are not infor- judgment reverse and We render in fa- (thus required mation produced Municipal vor of the Houston Employees (2) PIA), may under the the records System. Pension not be identifying disclosed in form certain, individual (except specified cir-
cumstances). specifically
The Pension states Statute custody pension
that records system subject about members its are not of C.M.C. and Interest to the PIA. have no or incli- authority We J.T.C., Minor Children. statutory pro- nation to a clear rewrite nouncement. No. 06-05-00089-CV. Subject Are the HMEPS Schedules Texas, Appeals Court of Open Meetings Disclosure Under Texarkana. Act? April Submitted 2006. Attorney sug General also May Decided avail gests the documents should be Open able Act re Meetings because the
quires open disclosure of minutes of an
OPINION Opinion Justice CARTER. Lindsay Tope ap- Milton D. Tope *3 peal granting the trial of Brazoria County Children Protective Services’ (CPS) motion petition to dismiss their standing.1 based on lack Topes grandparents are the maternal seeking the children to adopt. Cole, Lindsay Tope’s When Melissa daugh- ter, and her had their parental husband rights terminated on or about November 29, 2004,2 the were placed children with 27, 2005, January their aunt. paternal On Topes petition adopt filed a 17, 2005, grandchildren. February On filed a alleging “motion to dismiss” to file an later, days adoption. Seven 24, 2005, February trial court held hearing on CPS’ motion and dismissed the petition. complain the trial court respects dismissing
erred three 1) procedural suit: because there was no 2) case, basis dismiss the the out- of-state “substantial 3) children, contact” allowing without to discover evi- refusal to dence CPS’ consent adoption. Because can be challenged through procedural means oth- summary judgment er than did not have substantial contact as Moore, Jr., O’Donnell, Tyler W. Ferebee law, judgment matter we affirm the PC, Houston, McGonigal, appellant. & the trial court. Picard, Trey Attorney, D. Asst. District Standing Challenged By Can Be Means Angleton, for appellee. Summary Judgment Than Other MORRISS, C.J., error, Before In ROSS their first CARTER, Topes argue JJ. the trial court erred proee- appeal 1. This was transferred to this Court 2. Melissa Cole's and her husband’s Appeals drug from the Fourteenth District Court of allegedly were terminated due to part Supreme order of the Texas Court addictions. program. equalization of its docket (Tex. Blue, 547, 554 dismissing Standing, Dist. v. durally in case. necessary component 2000); Pringle, as a of a court’s sub S.W.2d see re jurisdiction, ject-matter is a constitutional (Tex.App.-Tyler pet.); cf. Indus., a suit under prerequisite maintaining Caso-Bercht Striker Tex. Air law. Tex. Ass’n Bus. v. Texas (Tex.App.-Corpus Christi Bd„ 440, 444 Control summary (standing challenged by pet.) standing, If a lacks party decided, Gordy judgment). Since subject-matter jurisdiction to hear a lacks au Supreme specifically Court Texas Topes, According case. Id. ob challenged through standing to be thorized jection standing may only be resolved Blue, plea jurisdiction. *4 by summary Topes argue, judgment. The S.W.3d at 554. only by can raised a standing because be to is in es CPS’ motion dismiss summary judgment, for the trial motion A jurisdiction.3 to motion plea sence a in to hearing motion dis court erred by its substance to should be construed twenty-one-day miss without the notice re sought, merely by determine relief a quired summary judgment motion. Surgitek Bristol- caption. its form addition, argue In that Topes standing Abel, 598, 997 601 Myers Corp. S.W.2d can through is not an issue which be raised (Tex.1999). motion, argues In its a motion to dismiss and that a dismissal is standing under the Topes that an to inappropriate means decide mer Family bring to Texas Code its of a case. a of determination adoption. “Whether Alexander, Gordy v. 550 The cite subject-matter jurisdiction can be made 146, (Tex.Civ.App.-Amarillo 149 S.W.2d preliminary hearing a or should await a 1977, n.r.e.), writ ref'd overruled on other development of merits of the fuller
grounds by statute stated Bank of to trial largely case be left must Stehle, Southwest, Nat’l Ass’n v. 660 Blue, 34 exercise of discretion.” sound 572, Antonio (Tex.App.-San S.W.2d 573 not apply at 554. Rule 166a does S.W.3d n.r.e.), 1983, of support writ ref'd case. the circumstances of this under proposition standing that can be chal lenged only by summary judgment. argue The also Appeals Gordy, the Amarillo Court of held inappropriate is an motion to dismiss standing only challenged could the merits of a method to resolve case summary judgment. through motion dismissing erred in that the Gordy, 550 at 149. The Topes S.W.2d standing is not a basis for suit because twenty-one contend were entitled to under the Rules Civil dismissal Texas days’ hearing pursuant notice of the to P. See Tex.R. Civ. 150-165a. Procedure. 166a(c) of the Texas Rules of Civil Rule is an correct dismissal applicable summary judg to Procedure deciding the merits inappropriate means 166a(c). P. See Tex.R. Civ. ments. of a See Lane v. Baxter Healthcare case. 39, (Tex.App.-Hous 41 905 S.W.2d Corp., issue of can be
While the 1995, writ); Dist.] ton VanZandt summary judg [1st in the of a brought form 259, Holmes, (Tex.App. 261 ment, standing by 689 S.W.2d can also be raised other writ). However, decision Indep. Waco procedural means. Bland Sch. is a Tyler Appeals at "motion to dismiss” 724. Because We note that Court term, generic we refer the mo- rather will listed a "motion to dismiss” as method plea jurisdiction. to the challenge standing. Pringle, 862 S.W.2d tion as 870 party Dep’t Transp. whether a de novo. v. City Tex. (Tex.
not a
deciding
decision
the merits of a
Valley,
Sunset
646
S.W.3d
Blue,
Miranda,
plea
2004);
case. See
4.
In its
CPS cited
suit affect-
Mercure
N.V. v.
Rowland,
677,
(Tex.App.-
S.W.2d
680-81
ing parent-child relationship reviewed de
n.r.e.),
[1st Dist.]
Houston
writ ref'd
novo).
Matula,
and
Bowers
1997, writ),
(Tex.App.-Houston
[1st Dist.]
only
Although
5.
were
a
portions of Miranda
proposition
for the
that we
review
should
the
decision,
plurality
justices of
Texas
five
finding
trial court’s
for an
of discretion.
abuse
Supreme
no fact
held there was
issue
Court
Rowland, though, did
a
not concern
lack of
sovereign
waiving
immu-
gross negligence
Rowland,
subject-matter
jurisdiction.
nity
statute when
under
recreational use
Although standing
S.W.2d at 680-81.
and
evidence
Texas
Wildlife introduced
Parks and
subject-matter jurisdiction
at
thus
issue
refuting gross negligence
the Mirandas
Bowers,
court cited
Rowland as authori-
Miranda,
any
did
evidence.
not introduce
Bowers,
ty.
(citing
An
any
of the caselaw has
revealed
search
termination of the
par-
or for
Noting
other sub
easelaw definition.
joined
relationship
peti-
ent-child
require
Family
the Texas
Code
sections of
by:
adoption may
tion for
be filed
control,”
court
Tyler
“possession
(1)
child;
past contact”
stepparent
interpreted
has
“substantial
over the child.
requiring
as not
control
(2)
who,
result of a
adult
Cox,
Rodarte v.
69-70
adoption,
had
placement
has
actual
denied).
Although
writ
App.-Tyler
at
possession
control of the child
develop
Topes urge
this Court
30-day period
any
during
time
evaluating
substantial
standard
petition;
preceding
filing
contact,
so. The exis
we decline
do
(3) an
actual pos-
adult who
of “substantial
contact” is inher
tence
session and control of the child for
ently a
for which it
inquiry
fact-intensive
during
than two months
less
difficult, if not
formu
impossible,
will be
period
fil-
preceding
three-month
comprehensive
late a
standard
concise
ing
petition;
agree
Tyler
factors.
court that
We
with the
(4)
another adult whom
Legislature
the standard to
intended
determines
have had substantial
flexible in order to deal with “inevitable
past contact
child sufficient
*6
which could not be otherwise
situations
to warrant
to do so.
anticipated by the drafters.”
Id. at 70.
(Vernon
§
102.005
Tex. Fam.Code Ann.
Topes
they
Although
Topes
The
have
presented
contend
the
original
maintaining
to file an
for
the
in
evidence of
difficulties
they
grandchildren,7
because
had “substantial
contact with their
we be
past
inquiry
contact” with the children. We em-
our
should be focused
the
lieve
that,
occurred,
102.005(4),
phasize
under
amount of actual contact which
grandparents
granted
rights
parents.
6. We note that
are
tal
of the children’s
Because
several methods
obtain access to the
Melissa Cole's and her husband’s
grandchildren.
appropriate
Under the
cir-
terminated,
recognize
rights have been
we
cumstances,
access,
rights
these
include
a
Topes may
pursue
able to
that the
possessory conservatorship,
right
a
and
Here,
rights.
Topes
above
have
where
original petition
managing
file an
for
conser-
applicable
filed suit based on
statute
vatorship.
Tex.
Fam.Code
Ann.
contact,”
"any
past
adult” with "substantial
102.004,
(Vernon
§§
Supp.2005).
Topes’
grandparents
as
is of no
status
grandpar-
court
held
Beaumont
legal consequence
determining
in
whether
circumstances,
file,
may
certain
ents
under
standing.
Topes
have
managing
conservator-
posses-
ship
requesting
in a suit
intervene
5,000-acre
Topes have a
cattle ranch in
7. The
conservatorship
sory
require-
without
Montana,
Lindsay Tope
employed
as a
and
past
See ment
substantial
contact.
postmaster. Lindsay
it is difficult for
testified
102.004;
M.A.M.,
In re
Fam.Code
Ann.
ranch
them to leave Montana due
their
(Tex.App.-Beaumont
obligations
job.
rea-
and
Due
various
her
(substantial
pet.)
past
contact does
addiction,
sons,
including
drug
Cole
her
only
apply to
but
"other
rather
Topes
ex-
However,
would cease contact with the
persons”).
many
of these
periods
paren-
tended
of time.
are limited
the termination of
Language
ed.1987).
rather than
(unabridged
the difficulties encountered in
2nd
maintaining contact. The
is on the
assuming
alleged
focus
Even
the facts
by the
true,
amount of contact the
Topes
children have had
does
evidence
not raise
Topes may
past
adults. While the
well
fact issue
substantial
contact.
have
done the best
Texas cases which
could maintain-
substantial
con-
ing contact
their
tact has been found have
grandchildren,
involved consid-
erably
fact
more
contact than the contact al-
remains
actual contact was
leged
this case.10 The
extremely
Topes
only
minimal. The
had
Topes exchanged
twice,
correspondence8
met
older
monthly
child
and were not
telephone
daughter
calls with
even aware their
had
Specifi-
Cole
her
another
children.
cally,
until
child
March 2004 after the
Topes
gifts
would send
and cards
children
in custody
Although
various
were
holidays.
occasions and
Most
CPS.
there
calls, cards,
was evidence of telephone
this correspondence
fairly
could be more
letters, such
contact
interaction is too minimal un-
characterized as
with the mother
der the
children,
rather
circumstances
this case
par-
than contact with the
to cre-
a fact issue concerning
ate
substantial
ticularly considering
con-
ages
of the chil-
Even
light
tact.
when
in a
dren.9
viewed
most
only
physically met
to the Topes,
favorable
did not
grandchild
older
on two occasions
substantial past
contact with the chil-
and had
younger grand-
never seen their
as a
dren
matter of law. We overrule the
Lindsay
child.
testified she was not even
point
second
of error.
aware
grandchild
she had
second
until
March 2004.
Standing
Because the
Lacked
Law,
Matter of
There is no Need to
any
Under
conceivable definition of
Decide Whether Trial Court
its
Abused
contact,”
“substantial
Holding
Hearing
Discretion in
Be-
substantial
contact with the children.
Discovery
fore
ample
“Substantial” is defined as “of
amount,
size,
error,
considerable
quantity,
etc.”
In their
third
the Topes
DictionaRy
English
the trial
erred in
argue
holding
Random House
*7
trial,
writ)
hearing
8. At the
(step-grandmother
on the
new
standing
motion for
had
to file
Topes
the
introduced numerous letters sent to
petition
managing
for
conservator when she
Lindsay Tope by Melissa Cole. The letters sent
and the child had been close since birth and
to
Lindsay
Melissa
from
Tope
Cole
were de
step-grandmother);
child had resided with
stroyed by
783,
which
fire
burned Cole's resi
Hirczy Hirczy,
(Tex.
v.
838 S.W.2d
786
1992,
dence.
denied) (ex-
App.-Corpus Christi
writ
standing
had
husband
child’s mother
when
old,
years
9. The older child is four
and the
years
resided
he had
with child for three
younger
Rodarte,
father);
less
child is
than two.
as
the role
her
828 S.W.2d
(foster parents
standing
at 69-70
had
to inter
See,
Chavez,
(stand
e.g.,
to an this error. to address need had their parents child’s- have merely parties 102.006 bars certain Section terminated, an origi- to file have filing would otherwise from suit who by nal is limited Sec- suit. standing to file the Tex. Fam. provides: 102.006 tion 102.006. Section Because the 102.006. Code Ann. (a) Except provided by Subsection law, standing, under as matter (b), relationship parent-child if the be- 102.005, there is no need decide every living parent tween child prohibited whether Section terminated, child an has been original petition filing from may by: not be filed Further, adoption. is no need there (1) parent- a former whose parent trial court abused its decide whether the child has relationship child motion ruling discretion before order; by been terminated discovery because would (2) child; or the father of 102.005 even under Section (3) exception applied. if an to Section 102.066 family member or relative blood, adoption, marriage or of either Conclusion parent parent-child former whose agree standing, with CPS We relationship has been or of terminated jurisdic subject-matter component as a father of the child. tion, challenged by procedural can be (b) on filing The limitations suit im- judgment. summary other than means posed by this apply section do not in a most light Even favor when viewed person who: Topes, failed raise able to the (1) continuing posses- has a right whether a fact issue under an sion of access child the children contact with substantial order; existing court court did they sought adopt. The trial *8 (2) has consent of the child’s law, of that ruling, in as matter err conservator, managing guardian, or standing. For the rea Topes lacked bring legal custodian to the suit. stated, judgment we affirm the sons (Vernon Tex. Fam.Code Ann. trial court. 2002). CPS that lack argues ROSS, Justice, concurring R. DONALD parents standing because the children’s part. in part, dissenting in rights had terminated be- their concludes that majority The However, fore suit. could con- through means other challenged can be sent under one that summary judgment and than standing. exceptions to limitation on this Dist., 1987). Indep. Dallas Sch. 11. 729 S.W.2d Gutierrez occasions, lacked substantial contact grandchildren with the on two con- children as matter of I concur past law. stitute “substantial contact.” This ev- challenged through proce- can enough idence is create a fact issue. dural other than motion for means sum- that, majority points out under Sec- mary I judgment. respectfully dissent in 102.005(4), tion the Topes have the same however, part, because I believe a fact any past status as adult with “substantial issue exists whether the agree contact.” I grandparents past had substantial contact with their not specifically provision listed in that grandchildren. having standing to file a adop- Concerning A Fact Issue Exists Sub- however, disagree, majori- tion. I with the stantial Past Contact ty’s Topes’ conclusion status as
I agree majority with the that the stan- of no legal consequence is in dard of review is de I disagree, novo. determining standing. whether though, that there is no issue fact concern- (See slip p. opinion, footnote Their ing past If substantial contact. a fact is- status as grandparents is a fact that can- exists, prohibited sue the trial court not be ignored, affirmatively should be granting plea jurisdiction from considered, facts, along all other in and the fact issue presented must be to the determining past substantial contact. It is at trial. Dep’t fact-finder Parks & at least in weighing grandpar- relevant Miranda, Wildlife ents’ testimony this issue. (Tex.2004); see County Cameron v. that, majority also states “Texas Brown, (Tex.2002). past cases in substantial contact which only The trial permitted to rule on considerably been found have involved the fact as a matter law. issue alleged more than contact the contact I agree majority also that what case,” this and cites a number of such past constitutes “substantial conduct” must However, cases a footnote. the finding be a encompass flexible standard to un- past substantial contact in each and foreseeable situations. See Rodarte v. every case a full cited made after Cox, (Tex.App.-Tyler 69-70 merits, preliminary not at a hearing denied). And, majori- writ while plea jurisdiction. on a This is what ty admits that the determination wheth- the Topes are entitled to in this case—to er “substantial contact” has occurred have this issue submitted to a fact-finder. is a fact-intensive it inquiry, concludes the They may they are prevail, but entitled contact in this case sufficient was not to be day to have their in court. I sustain would substantial contact I as matter law. second of error. disagree. The Trial Abused Court its Discretion may "Whilethere be those circumstances Holding Hearing Discovery Before where “substantial contact” does not CPS, law, exist matter According as a this case is not stand- one of people ing them. Reasonable could because the parents dis- children’s agree regular correspondence, on whether their parental terminated before the *9 calls, telephone § the monthly sending and of suit. 102.006 Tex. Fam.Code Ann. (Vernon 2002). gifts CPS, special and cards for occasions though, could con- in holidays by grandparents adoption Montana to sent to of the under one the Texas, grandchildren personal exceptions in standing. to this limitation on of See id. by Despite prior contact those a to request one CPS
875 v. principles. Narvaez guiding rules and any proceedings,12 of be notified Maldonado, 313, by concerning notified were not CPS parental proceedings.13 termination The trial court pet.). App.-Austin not learn of the termination Topes did the require may have been able waive and her Melissa Cole’s husband’s managing conservator consent ment that January 5, con- Lindsay 2005. until if the adoption petition filing of the tacted informed there was CPS was good cause without consent was withheld nothing undisputed could It is she do. is inter consent in the best and waiver of study that did not undertake a home CPS is intended to Discovery of the est child.14 request on the or that Montana ambush.” See Gutierrez by “trial prevent study. such a The record CPS undertake Dist., Indep. Dallas Sch. v. concerning why CPS contains no evidence (Tex.1987). discovery, Without adoption. consent to the withheld County with ruling on whether Brazoria Topes argue trial should prema good cause is held consent without requirement of consent because waived the Further, whether the waiver of con ture. County withholding Brazoria consent of the children is in best interests sent cause con- good without and waiver of the clearly a which must be decid fact issue sent would be the best interests I sustain ed the fact-finder. would Home, Chapman children. Topes’ point third error. (Tex.Civ.App.-Fort Worth Conclusion writ) (court can waive consent under Although majority that Family I concur former 16.04 of Texas Code). through proce- challenged The trial court found was no can be there summary judg- failure consent evidence “movant’s means other than dural respondents’ petition de novo and that we should review ment faith.” good standing, I ruling trial be- court’s a fact exists whether lieve issue I believe the trial court abused its dis I past contact. had substantial ruling cretion in on the motion dis before dismissing the trial court erred believe covery. of sub “Whether determination proceed- in the at this jurisdiction ject-matter can be made in a past con- ings. The of “substantial issue preliminary hearing should a full await proceed tact” have been allowed should er merits the case development Further, court abused its to trial. trial must to the largely be left ruling on issue of whether discretion in Bland In- sound exercise discretion.” good cause Blue, consent CPS withheld without dep. Sch. Dist. I (Tex.2000). discovery. reverse before would A trial discre court abuses its and remand for judgment of the trial court if in an or arbi tion it acts unreasonable manner, proceedings. to further trary without reference Chapman concerns statuto- life note that CPS became involved in the 14.We 12. 2003, Lindsay general requirement ry Cole. In March waiver Melissa requesting at CPS notifi- adop- wrote a caseworker managing conservator consent grandson involved 267; her become cation should at see Chapman, tion. your wel- or "returns to or remains in child (Vernon Fam.Code Ann. system.” fare appeal this waiver is argued standing. inapplicable to Lindsay daughter in- testified that her CPS had formed her in March grandchildren. custody *10 I part respectfully concur in dissent part. BROWNSVILLE,
CITY OF Oklahoma
Municipal Authority, Power and AEP Company, Appellants,
Texas Central
GOLDEN SPREAD ELECTRIC
COOPERATIVE, INC.,
Appellee.
No. 05-05-01150-CV. Texas,
Court of Appeals of
Dallas.
May 2006.
Rehearing Overruled June