*1 recently killed chickens deputies found PROPERTIES, KILLAM RANCH injuries which were consistent
that had LTD., Appellant array with knife wounds and an of chicken large A number of fighting paraphernalia. present were and there was blood people chickens, injured COUNTY, Texas, on the chick- Appellee.
on the dead WEBB ens, that ground on the an area No. 04-10-00324-CV. fighting ring. a chicken resembled Texas, of Appeals Court of fact was not bound
The finder San Antonio. he nothing statement that did Appellant’s vari- “spar” than the animals2 or his more April implements ous for the found. explanations with respect We reach the same conclusion argument brief that Appellant’s that the sparring
State did not show generally accepted
chickens is not a occurring
otherwise lawful form of conduct
solely husbandry agricultural animal or
practices involving livestock animals. See 42.09(f)(2). This
Tex. Penal Code premise that
argument Appel- rests on engaged only
lant in the conduct he admit-
ted, sparring that is the animals. For the stated, we the finder of fact could
reasons rationally Appellant
have determined that in the
engaged fighting chickens armed that conduct is not a blades and such
generally accepted husbandry animal
agriculture practice. Appel- We overrule
lant’s first and second issues.
Disposition
Having Appellant’s overruled first and issues, judgment
second we affirm
the trial court. offense, finding guilty say saying Appellant 2. After went on that he was "not that judge just sparring.” the trial court that he made Accord- [he found] [to be] stated sparring fighting, ingly, judge distinction between but while the trial court was of fighting, very generous opinion sparring the verdict said that it "would be if I thought just judge sparring.” it was did not rest on that conclusion. *4 Court, County’s motions and de- granted Webb District From the 341st Judicial Texas, appeals motions. Killam Trial No. nied Killam’s County, Court Peden, granting P. denial of its motions and 2007-CVQ-001680-D3, Michael affirm in County’s motions. We Judge Presiding.1 part part. and reverse and remand Keller, The Keller Law Kimberly S. Firm, Boerne, TX, appellant. for BACKGROUND Allison, Allison, & P. Bass Associ-
James ates, L.L.P., Austin, TX, Byron Keeling, C. background Factual P.C., Downes, Downes, Keeling B. & Ruth Houston, TX, Haynes, Trevi- parcel Alison White owns a 294.24-aere TX, Laredo, Appellee. Haynes, commonly no Vails known as the Webb Center, which it ac- County Detention Sitting en banc: CATHERINE in 1980. quired from the United States Justice, STONE, KAREN A. Chief conveyed also government The federal ANGELINI, Justice, SANDEE BRYAN *5 over land owned Killam. easements MARION, Justice, PHYLIS J. provide prop- The access to the easements SPEEDLIN, Justice, REBECCA erty. Justice, SIMMONS, STEVEN C. reflects that Webb record Justice, HILBIG, MARJALYN passed a resolution Commissioners Court BARNARD, Justice. property to sell the on No- to solicit bids OPINION original vember 2005. The minutes meeting from the state as follows: OPINION ON MOTION FOR EN possible Discussion ac- Item No. 9 BANC RECONSIDERATION. County Purchas- tion to direct the Webb HILBIG, by: Opinion STEVEN C. propos- ing Agent requests to solicit Justice. for the sale of the Webb possible als Killam Ranch Motion for En Properties County Detention Center. granted. Banc We Reconsideration item Judge approve Bruni motioned to May opinion our withdraw sec- as submitted. Cmr. Cortez-Bruner
judgment opinion judg- and issue this onded the motion. place. ment in its previous Gutierrez states that in Cmr. appeal This arises from Killam Ranch minimum meetings, the Court had set a (“Killam”) claim that Properties, Ltd.’s doesn’t feed that it bid of million and $10 the Texas Local Webb violated change. should She stated that Open Government and the Texas Code taxpayers responsible court was Meetings county-owned Act when it sold and stated that she did not see need Proper- to Khaledi acreage and easements property anytime to sell the soon. She (“Khaledi”). ties, Ltd. Killam filed suit make stated that it was hard to a deci- against County seeking declara- on the seeing appraisal sion without tion the sale was void because of the stat- property. utory Killam also filed a lis violations. item pendens. parties Judge approve Both filed motions for Bruni motioned to with a million mini- summary judgment. The trial as submitted $10 Peden, assignment. sitting by- 1. The Honorable Michael P. ditions, including county- the sale of the seconded bid. Garza
mum Cmr. property. owned easements over Killam’s motion. recommended the commissioners Ramirez with Gutier- carried 4-1 Cmr. Motion 9, 2006, January Khaledi’s bid. On accept voting against. rez the commissioners considered the bids and suit was and after the years later Several accept Khaledi’s bid. The com- voted to an order filed, issued the commissioners met in executive session four missioners minutes. The original that amended times, January and October between inaccurately re- No. 9 states “Item order property to discuss the sale of ap- Bruni motioned Judge flects that Khaledi. million item as submitted prove $10 (CR1118). background The amended
minimum bid.” Procedural to a min- any reference minutes eliminated declaratory judgment filed a ac- imum bid. County seeking a decla- against tion Ramirez, County pur- Eloy the Webb property the sale of the was void ration deposition his chasing agent, testified comply with because the did not and the the sale regarding in section bidding requirements He testified Coun- bidding process. 263.007, alternatively, failed in the identified ty used the 272.001 of the Local comply with section its standard code” as government “local Killam also asserted Government Code.3 Ra- of real estate. for the sale to con- by convening meetings closed process described the sealed mirez negotiations prop- of the sale of the tinue *6 in County as “bids are submitted Webb County accept voted to Kha- erty after the and they’re opened and envelopes sealed bid, County violated the Texas ledi’s Although not ordered public.” read to the Act, resulting and the sale Open Meetings Court, Ra- by the to do so Commissioners was void. public in the bid notice mirez included par- motion for Killam filed a traditional being pursuant was sold property summary judgment ground on the tial Local Govern- of the Texas section 263.007 the sale of commissioners court authorized testified he deter- Ramirez ment Code.2 acreage not the easements. only the and own, back- based on his mined on his Killam filed a was denied. This motion purchasing as experience ground summary motion for second traditional County, to use section for Webb agent claim the sale was void judgment on its The notices property. to sell the 263.007 comply not with County did because Webb acres, and as 294.24 property identified the 272.001 and it violated 263.007 or sections being through it sold sealed stated was This mo- Open Meetings Act. the Texas pursuant to section 263.007. was also denied. tion any notices made no reference easements. a traditional motion County Webb filed summary judgment grounds on the for eventually entities submitted
Three Killam, substantially complied with section Khaledi, Har that it sealed bids— alternatively, require- met the Ltd., 263.007 or entity associated Properties an County section 272.001. Webb subject to eon- ments of Khaledi’s bid was Khaledi. to section 272.001 3. All further references All further references to section 263.007 of the Texas opinion are to that section opinion of the Texas this this are to that section Code. Local Government Code. Local Government County Alternatively, argues motion for sum- Killam Webb also filed a no evidence 272.001(c), comply with section asserting Killam had failed to mary judgment, pro- requires county- which Killam contends County violated the vided evidence abutting be sold to prop- owned easements act no evidence open meetings Webb erty owners. meetings “to ne- County conducted closed the Real Estate Sales Contract gotiate County accept- Killam also claims Webb granted with Khaledi.” The trial court bid because Khaledi’s bid improper ed County’s summary motions for both Webb price was not for the “total for the 294.24 County judgment. Webb filed motion acres;” provided and Khaledi a conditional fees, attorneys and Khaledi filed $3,100,000.00 if pay acreage offer to pendens. to cancel the lis The trial buildable, motion was it was free of easements or granted hearing both motions at the restrictions, a war- granted attorney’s on the motions. The award of ranty single family dwelling of use for judgment; in the howev- units, fees was included family multiple and Webb er, canceling pendens the order the lis conveyed county-owned separately signed by not the trial court until after the overlying abutting easement Killam’s 24.36 plenary power. Additionally, court lost Kha- acres. contends rejected
ledi’s bid should have been be- cause was less than the million $10 DISCUSSION requirement. minimum bid Application of section 263.007 of the Tex- TEXAS LOCAL GOVERNMENT Local as Government Code CODE Killam first contends that because Killam’s claims County’s public speci notice and bid Killam contends Webb was re- fications stated would be sold to section quired pursuant pursuant to sell the 294.24 acres 263.007 of the Texas Code, Local Government public section 263.007 because the notice *7 comply had to with that section and section pursuant stated the sale was to that stat- applicable. 272.001was not County ute. Killam claims Webb did not comply with section 263.007because: The Texas Local Government Code au- property through thorizes counties to sell County
1. “adopt pro- Webb failed to a procedure a closed bid under either sec- cedure” for the sealed-bid sale as re- 263.007 or 272.001. tions See Tex. Loc. 263.007; by quired section § § 263.007 272.001 Gov’t Ann. Code public 2. notices of the sale were (West 2010). 263.007(a) Supp. pro- Section inadequate public because neither the county vides the of a Commissioners Court specifications notice nor the bid dis- a adopt procedure by which the coun- encompassed closed that the sale ty may any sell or lease real property easements; through sealed-proposal a sealed-bid or 3. failed to obtain and 263.007(a), procedure. Unlike section sec- an appraisal consider before the sale to 272.001(a) any tion does not include lan- property’s ascertain the fair market val- guage requiring governments local to ue; and adopt procedure a for the sale of real property; requires only did not determine a instead it that the minimum ap- governments comply bid amount based on the local with the enu- praisal. requirements merated in section 272.001.
153 statutes, primary imally procedure our sufficient with which interpreting When intent as ex Legislature’s government, is the all units of including concern state of the statute. by language counties, pressed comply must in order to con- States, Summers, Inc. v. 282 Entergy legislature duct a valid sale.... The in- Gulf 433, (Tex.2009); State v. Shu 437 county to provide tended Section 263.007 (Tex.2006). make, 279, We 199 S.W.3d 284 a governments with mechanism to draft according words construe the statute’s adopt specific, more extensive re- meaning unless a plain their and common quirements relating to the sale of real contrary apparent intention is from property, ensuring any while such leads context or unless such a construction adopted by county rules a would contain results. FKM to nonsensical absurd requirements public the minimum for a Regents v. Bd. Univ. P’ship, Ltd. of sale of real estate. (Tex. 619, Sys., Houston 255 S.W.3d Paso, v. El 954 S.W.2d Collins 2008); Tex., Fleming see also Foods of 1997, pet. Paso de (Tex.App.-El (Tex. 278, 284 Rylander, Inc. v. 6 S.W.3d nied) added). (emphasis agree We 1999). enacted interpret When we code interpretation our sister court’s of the two we read words and by legislature, gives 263.007 statutes. Section counties construe them ac phrases context and if option adopt procedure and cording grammar to the rules of and com not adopt procedure, did usage. mon Ann. Tex. Gov’t Code governed then the sale of the 311.011(a) (West State, 2005); § Jones 272.001, by regardless section of whether (Tex.App.-Dallas public pursu notice stated the sale was pet.). ant to section 263.007. There is no lan Neither section 263.007 nor section in either other guage suggest statute public 272.001 notice include a requires wise. authorizing reference to the statute Furthermore, requirements The minimum of section section 263.007 sub- sale. (f) require- au- are to the procedure 263.007 almost identical provides “[t]he 272.001(a). by require- this section an alternative thorized ments of Section authorized ments common to both section 263.001 and 272.001(a) Section 272.001.” Tex. Loc. Gov’t Code are: (West 2010). Supp. The El 263.007 (cid:127) of the offer general public notice to the appeals court of examined these two Paso land; *8 sections and concluded: (cid:127) dates; separate two published to be on 272.001(a) provides require- Section the (cid:127) circulation; newspaper general in a to ments for a valid sale of real through a general public the sealed (cid:127) land, the including description “a by government of local procedure units location;” including its counties, general, including and that (cid:127) by which including procedure the alternative, an requirements these form purchase the land or sealed bids cre- parallel procedure procedure to the exchange the land be offers specifically ated for counties in Section submitted; and requires 263.007. Since Section 263.007 (cid:127) of the land cannot exchange the sale or adoption specific procedures the at day after occur until the fourteenth county the discretion of the commission- of the second adver- ers, publication the procedure the outlined in Section 272.001(a) “default,” min- tisement. constitutes the using ever §§ 263.007 & remembers Tex. Loc. Gov’t Code (3) sale; Collins, for a and Webb 272.001; at section 272.001 see also specifica- County’s public notice and bid mini- between the 147-48. The difference section specifically referenced that tions each statute is requirements mum 263.007(c)(2) requires the 263.007.... explicitly section minimally determine commissioners However, that although the record reflects Al- appraisal. on an acceptable bid based mil- minutes reference a original $10 272.001 is silent as though section bid, court issued lion the commissioners the court appraisal requirement, Collins by correcting original minutes order implied appraisal there was an determined to a minimum. Ac- deleting any reference requirement in 272.001 because subsec- cordingly, original minutes do not con- (h) (b), (f), refer to the deter- tions and all intent of any evidence of the Com- stitute by appraisal, mination of fair market value body, by its missioners Court because all the subsections refer to the sale of minutes, indicat- amending later order ei- land for fair market value determined minimum bid its intent was that no ed by appraisal by public ther auction. required. 147-48; Collins, Op. 954 S.W.2d at see also testimony is no Additionally, Ramirez’s (1993). Att’y
Tex.
Gen. No. DM-232
in-
of the commissioners court’s
evidence
Because Webb
Commissioners
a
under section
adopt
procedure
tent
pursuant
a
adopt
did not
Court
Ramirez testified he decided to
263.007.
263.007,
long
as
as the sale
to section
own,
on
use section 263.007 on his
based
statutory re
complied with the minimum
background
experience
purchas-
as
his
272.001,the sale was
quirements of section
ing agent
County,
for Webb
and he could
Collins,
(1) officially (Tex.App.-San Antonio Commissioners n.r.e.) (“It bid of million writ ref'd is well settled established minimum $10 *9 (2) vote; by twenty- county only through a to the that a can act its four one authority year purchasing veteran Webb and the of Commissioner’s Court govern as the agent testified he received direction and the Commissioner’s Court ing body county from the commissioners of the to make contracts instruction property county to sell the and that in behalf of the is limited to that Court by necessary expressly section 263.007 in its conferred either or uses of property, noting implication by sales of real he never the constitution laws
155 state.”). received the same information. policy the consid bidders this Whatever required was not erations, agent Webb include purchasing the acts of the in County. public the easement the notice because not bind Webb and did cannot or a “loca- “description it is not a of land” See id. meaning within the property tion” of held, are unwill- we As the Collins possessory a relevant sections. “Unlike proce- of local imply adoption the ing to land, nonpos- in an easement is a interest examining the Commissioners’ dures sessory interest that authorizes its holder inactions, that “especially given actions or only the for property particular to use of a under Section adoption the Assoc., L.P. v. purposes.” Marcus Cable 268.007(a) discretionary, and intended as is (Tex.2002) (cit- Krohn, 697, 90 S.W.3d 700 alternative to the “default” an Property ing Restatement (ThiRd) (Ser- of 272.001(a).” Collins, in Section contained d.). County’s 1.2 cmt. vitudes) at 149. 954 S.W.2d description statutory met the re- property Property description quirements. the proper Killam next contends the record contends description public in the notice ty authorized proof lacks the Commissioners the sale inadequate because it did not state easements, publicized the sale of the or the easement. property included of conclusively and the evidence shows the 263.007(b)(3) 272.001(a) Both sections and ad only thing contemplated sale description of require provide the notice public was the 294.24 acres. vertised location. Tex. Loc. Gov’t the land and its Killam asserts Webb never con 272.001(a). 263.007(b)(3) §§ & Code selling the easements until after templated strictly comply with County officials must meetings regarding it closed door held in description requirements the property However, acreage. Killam’s sale of the valid notice of sale. provide order the nature of argument appreciate fails to Collins, compli at 954 S.W.2d 151. Strict undisputed It the ease the easements. is all provisions provides ance with notice appurtenant4 to the ments in this ease are com equal opportunity with an bidders public in the acreage that was described bidding pete. “Competitive See id. at 151. appurtenant “An bene notice. easement soliciting through of bids ad requires attached; it is to which fits place a manner as to all vertising such from the owner’s separated cannot be field. playing bidders on an even potential land, passes and it rights necessary equal This fair and treatment is Lee, 26 Holmstrom v. S.W.3d property.” for the unit possible to achieve the best 2000, pet.); (Tex.App.-Austin 531 government.” local Id. Ranch, Inc., Drye Eagle v. Rock see also (Tex.1962). Because County’s notices described necessarily passed with All the easement potential land and its location. only by the owner nec covenant that can be held appurtenant when it is 4. An easement is essary enjoyment of the parcel, and essential to the occupier particular of a unit or or Ranch, Drye Eagle Rock dominant estate. A burden that obli appurtenant benefit. " 1962). Inc., (Tex. 'Ap particular occupier of a gates the owner or rights purtenant' or obli means person’s capacity as parcel in that unit or ownership or gations of a servitude are tied to occupier appurtenant burden.” is an owner parcel occupancy particular unit or (Servitudes) Property (Third) Restatement *10 right enjoyment of an easement land. The (2000). § 1.5 profit, performance of a or or to receive the (1) in the abutting property owners County required Webb was not property, in same subdivision if the land has been description public to include its no- subdivided; or tice.
(2) in abutting property propor- owners abutting ownership, tion to them and the appraisal Market based on Fair Value division between owners must be made County claims Killam also equitable in an manner. conclusively complied not establish it did 272.001(b)(2), Tex. Loc. Gov’t Code Ann. requirement of section appraisal (c). argues Killam are easements on 263.007(c). that Killam contends only it owns in fee and it is the property requires specific demonstrating evidence landowner; therefore, abutting only Kil- appraisal the commissioners reviewed the purchase lam could the easements. A on a fair market value and then decided reading of the plain statute demonstrates argues Killam property. for the because provision contemplates only this the sale of there is no evidence commissioners independent an easement from the sale actually appraisal considered the submit real in fee and has no property application summary judgment evidence in ted as es appurtenant to an easement that is value tablishing prop fair market for the property. Id. erty, Webb not entitled to Improper bid summary judgment. asserts Khaledi’s bid Killam As stated Collins “[s]ection disqualified have been should because 263.007(c)(1) only that requires county offi- public contained conditions outside the no appraisal cials obtain an to establish the specifications. tice and bid Killam cites no fair market value of the land and section authority prop that a contract for sale of 272.001(a) requires implicitly the same erty is where the void bid includes condi procedure.” commissioners obtained tions but there is evidence the bidder’s an that appraisal property valued at accepted. conditions were The sales con $2,950,000.00 October-26, as of 2005. The any tract here does not contain of the commissioners a bid from Kha- accepted additional conditions listed in Khaledi’s $3,100,000.00.
ledi for There nothing bid. requires that anything statute other Killam contends the also Commissioners than an that appraisal supports the fair Court authorized a minimum bid of $10 market value and amount of the bid million and Khaledi’s bid should have been Collins, accepted. that is See rejected because it was for less than that at 152. complied with the However, amount. the Commissioners appraisal requirement. later meeting Court corrected the minutes abutting Sale easements landown- determining after the minutes “inaccurate- only ers ly” Judge reflected that Brum’s motion to argues approve did sale 294.24 acres includ- 272.001(c), strictly comply not with section ed a million minimum requirement. bid $10 only which Killam contends allows the sale The corrected minutes reflect that Com- of an easement to an abutting landowner. missioner Garza made a motion to sell the 272.001(c) provides Section with a million minimum streets $10 alleys, by county owned in fee or used but the motion failed. Webb did accept easement be sold to: not bid. improper
157 Disciplinary Rules of Professional Conduct OPEN MEETINGS ACT TEXAS clearly Chapter conflicts with 551. Tex. alleged County the Webb Killam (West 2004). 551.071 Open violated the Texas Gov’t Code Ann. commissioners attorney- incorporates Section 551.071 by “convening closed meet Meetings Act v. privilege. Olympic client Waste Servs. 9, 2006, the January after date ings Saline, 496, City 204 502 Grand S.W.3d for accept voted to Khaledi’s bid 2006, pet.); no (Tex.App.-Tyler see also Center, engage Detention the Old (2000). Op. Att’y Tex. Gen. No. JC-0233 of the ongoing negotiations for sale 551.071(2),a governmental “Under section negotiate of land and to 294.24 acres body may attorney consult with its exec Real Estate Sales Contract with Khaledi.” legal utive session to receive advice on the motion filed a no-evidence contract, by a but proposed issues raised Killam summary judgment, asserting for governmental under provision this Open the Texas had no evidence violated body may pro not discuss the merits of a Meetings Act. Webb also asserted contract, considerations, posed financial or pur the executive sessions were conducted non-legal other matters related to the con exception consultation legal suant to merely attorney pres tract because its Meetings Act and there Open the Texas Op. Att’y ent.” Tex. Gen. No. JC-0233 was no evidence Webb conducted (2000). during If an executive session negotiate “to the Real Es meetings closed topics there is discussion of outside the tate with Khaledi.” Killam Sales Contract cross-motion, asserting scope statutory exception legal a violations of of the filed advice, the Act. then there is a violation of Texas Open Meetings Act. Olympic See Waste Open Meetings requires The Act Servs., 204 at The coun legal meeting of every regular, special, or called on exception sel is an affirmative defense governmental body open to be governmental entity which the bears the provided by chap as this public “except proof. City burden of Farmers Branch §§ ter.” 551.002 Tex. Gov’t Code Ramos, 462, (Tex.App. v. 235 S.W.3d 466 (West 2004); City Benito v. Rio San 2007, Olympic no pet.); -Dallas Waste Co., 750, Valley Gas 109 S.W.3d Grande case, Servs., at 504. In 204 S.W.3d this (Tex.2003). governmental body If the 757 alleged the Commissioners Court none of the meeting holds a closed the executive to conduct convened sessions Open Meetings the Texas exceptions to negotiations regarding the sale of the meeting violates apply, Act then closed Khaledi, which would exceed property to Dallas, City the statute. Finlan v. 888 authority scope conveyed of the 779, (N.D.Tex.1995); Mar F.Supp. 551.071(2) for executive sessions (Tex. State, tinez attorney. for consultation with Crim.App.1994). ’ County sought only a no attorney consultation ex summary judgment based on the evidence ception Open Meetings to the Texas Act affirmative defense. A mov- body may legal counsel provides governmental that a file a no-evidence motion for consultation with its at ant cannot private conduct body summary judgment on an affirmative de torney only governmental when the at prove fense that it has the burden to attorney seeks the advice of its about Chevrolet, Ltd., 152 Friendly trial. Selz v. pending contemplated litigation or offer, (Tex.App.-Dallas or on a matter in which S.W.3d settlement Invs., Inc., 129 duty attorney pet.); the Texas Thomas v. Omar under *12 158 290, 2004, real meetings no door did not come within the (Tex.App.-Dallas 294
S.W.3d attorney exceptions. estate or consultation 110 pet.); Corp., Nowak v. DAS Inv. Killam relied on the Commissioners 677, (Tex.App.-Houston 680 [14th S.W.3d meeting minutes to establish Court’s 2003, pet.). County Webb had Dist.] executive Court went into Commissioners proving legal that the coun- burden Open in violation of the Texas session that it did not exception applied sel Meetings clearly Act. The minutes indi- scope exception. exceed Webb into cate the Court went Commissioners County summary not seek a traditional did executive session on issues related Meetings Act judgment Open on the Texas sale of the and that the executive conclusively and did not establish claim requested pursuant sessions were to provided by affirmative defense the statu- attorney ex- consultation and real estate tory exception allowing governmental 551.071(2) in ceptions sections and 551.072. consult- entity open meeting to avoid attorney excep- Because the consultation Therefore, attorney. with ing its Webb defense, Killam tion is an affirmative was summary judg- was not entitled to required conclusively negate ap- not to its Open Meetings ment on Killam’s Texas however, if in plication; there is evidence Act claim and the trial court erred in raising the record a fact issue on the de- granting the motion. fense then Killam was not entitled to sum- mary judgment. appeals Killam also the trial court’s denial of its cross motion for sum response asserted in its mary judgment Open on the Texas Meet relying Killam’s motion that it was on the Servs., ings Olympic Act claim. See Waste attorney exception. Although consultation (when at 204 S.W.3d 501 cross-motions are any present respon did not filed, appellate pre evidence, court decides all issues summary judgment sive Killam’s judgment and renders trial court sented evidence raises a fact issue on whether the rendered). attorney applies. consultation plaintiff exception should have When the Servs., at Olympic Waste 204 S.W.3d 501 summary judgment moves for it must con (when reviewing competing motions for clusively prove each element of the cause summary judgment, court considers all the action Swilley as matter of law. v. motions.); accompanying evidence both 64, (Tex.1972); Hughes, 488 S.W.2d 67 Cnty. Appraisal Dallas Dist. v. Inst. for Ortega-Carter Adjustment v. Am. Int’l Research, 318, Aerobics 766 S.W.2d 319 Co., 439, 441 (Tex.App.-Dallas 834 S.W.2d denied). (Tex.App.-Dallas writ The denied). plaintiff writ meets the from the meetings minutes con produces burden if it evidence that is suffi were tends conducted violation support cient to an instructed verdict at Open Meetings Texas Act reflect the exec Brownlee, trial. See Brownlee pursuant utive sessions were conducted (Tex.1984). If a defen attorney consultation real estate dant relies on an affirmative defense the exceptions. This evidence is sufficient to negate not the affir plaintiff required regarding County’s raise a fact issue defense; rather, mative the defendant affirmative defense and the trial court must come suffi forward evidence properly denied motion Killam’s for sum cient to raise an issue of fact on its affir mary judgment. mative defense. Id. LIS PENDENS summary judgment Killam’s motion for asserted Webb violated the Texas Killam next contends the order Open Meetings Act cancelling pendens nullity because closed the lis is a be- Escobar, days respect. the trial court this thirty more than signed cause it 232; Thompson, 711 S.W.2d at judg- final court rendered after the trial *13 at 484. agrees that the order ment. Khaledi plenary trial court lost after the
signed
hearing
At the
where the court consid-
proper
a
argues the order was
power, but
fees, entry
judgment,
of
attorney’s
ered
a cleri-
judgment to correct
pro
nunc
tunc
pendens,
cancellation of the lis
the
and
cal error.
grant
court indicated its intent to
the
trial
pendens.
to cancel the lis
Howev-
motion
become
judgment
After a
has
1,
er,
April
on
judgment signed
the final
final,
only
correct
a
trial court can
the
can-
2010 did not did not include an order
in
Escobar v.
judgment.
error
the
clerical
not file
celing
pendens.
the lis
Khaledi did
(Tex.1986).
Escobar,
230, 231
711 S.W.2d
pro
judgment
a motion for nunc
tunc
and
discrepancy
error is a
between
“A clerical
evidence of the circumstances
there is no
in
record and
entry
judgment
of a
the
the
entry
of the order cancel-
surrounding
actually rendered
that was
judgment
not in
pendens.
the lis
The order is
ing
court,
arise from
and does not
by the
record,
there are no factual
the clerk’s
reasoning
or
determination.”
judicial
Because
determinations for us to review.
852,
Rawlins, 324 S.W.3d
855
Rawlins v.
in
record to demon-
nothing
there is
2010, no
(Tex.App.-Houston
Dist.]
[14th
signing
trial
basis for the
strate the
court’s
Escobar,
The issue raised Khaledi is whether with ding process troubling disagree and statutory requirements filing the for notice majority’s holding County’s the that met. pendens of lis were This is not in property proper, compli- sale of the was standing cannot for the issue and be raised statute, Therefore, legisla- ance with the based on and first time on we do not appeal. intent, majority’s tive I opin- dissent to the jurisdiction pendens, have to cancel the lis ion on en banc motion for reconsideration. upon remand the issue can be raised is, my opinion, Reversal and remand in the trial court. the mandated because method of sale used in this case does not conform to standard ATTORNEY’S FEES practices business and offends notions of attorney’s were fees awarded to play, fair El Paso Collins County pursuant Uniform support does not the conclusion for which Declaratory Judgment Act in connection cited, it there importantly, but most summary with grant judgment on more than a scintilla of evidence produced both the Local Government Code and Tex- by Properties, Killam Ranch Ltd. in re- Meetings Act Open as claims. Because we sponse County’s to Webb motion for sum- reversing remanding Open are mary judgment. claim, in Meetings jus- Act the interest of tice we are reversing remanding pro- The Texas Local Government Code attorney’s fee award for further consider- county governments vides with two options Open ation after the Meetings Texas Act selling for real via a sealed bid claim is determined. process. See Tex. Loc. Gov’t Code Ann. (West 2011). 263.007, §§ 272.001 Supp.
. CONCLUSION provides Section 263.007 for “Sale or correctly The trial granted Property Through Webb Lease of Real Sealed- County’s Procedure,” summary judgment motion for on Bid while section 272.001 pro- Exchange Killam’s claim that for of Sale or violated vides “Notice sections 263.007 and 272.001 of the Texas Land Political Subdivision.” Id. Al- However, Local Government though provisions Code. the tri- share certain re- improperly granted quirements, al court each provision Coun- also contains minimally procedures sufficient provides not. the other does Com- requirements with comply § 263.007 that counties must when sell- pare Ann. Tex. Loc. Gov’t Code ing property. § 272.001 real Id. at 149-50. Because with Tex. Loc. Gov’t Code (section gov- county there was no evidence the intended require not local 272.001 does governed by to be county procedure for the bid adopt ernments 263.007, only requirements given of section requiring real property, sale of county’s adopt failure to comply with enumerat- governments local lo- the sale and its failure to reference either require and does not requirements, ed 272.001, minimum ac- section 263.007 or section to establish governments cal bid; provision court held the “default” of sec- requires 263.007 ceptable both). tion 272.001 controlled. Id. The my county govern- In opinion, though that even section 263.007 potential argued “bait” bidders ment not method, other explicitly pub- and then “switch” to the was not referenced one Bidders, Notice to be are received. It is also lished could in- method after bids *15 by county’s attempt- ferred the actions in upon that the case relied my opinion ing property county to sell the that the opinion support court in its does not this pursuant intended the sale to be conducted methodology “bait and switch” the —in fact, appel- such a to section 263.007. Id. at 150. The the case does not address rejected argument, stating late court this situation. any absence in the record of indica- “[t]he Paso, El the County In Collins County adopted tion that Commissioners to Bidders” county published a “Notice property by to sell real sealed procedure the sale paper specifying the local without renders moot a discussion of the sec- bid the Local Gov- procedure to be used under required ond element in Section 263.007— 142-43 ernment Code. of a minimum bid under the determination denied). Af- (Tex.App.-El pet. Paso 263.007(c)(2).” Id. at 149. Section the earnest accepted ter a bid was and in this county majority opinion the com- The case relies money deposited, check court, that a proposition the of sever- on for the coun- missioner’s over course Collins weeks, ty commissioners court choose to sell procure al was unable to sufficient county sign to 263.007 or 272.001. judge votes to authorize the land under sections And, if court does not warranty conveying property. the Id. the commissioners ensued, applies, long which section then “as Litigation at 143. and the choose complied the sale with the minimum county El Paso commis- as asserted 272.001, statutory requirements of section provide proper court had failed to sioner’s Majority Op. at 154. proper.” the sale was proposed pursuant notice of the land sale However, here. inapposite of section 263.007 of the is to the mandates Collins Government Id. The trial Local Code. Collins, evidence, there is suffi- Unlike finding granted summary judgment, question purposes a fact cient to raise sale, its 263.007 controlled the section summary judgment, that the Webb were not met. Id. at 145. requirements adopted a County Commissioners Court pursuant for the sale to section appeal, Appeals On the El Paso Court of (1) reversed, the commissioners court offi- there are two methods 263.007: holding cially a minimum bid of county may $10 conduct a sale of established by which a (2) vote; 263.001, by a four to one real the alter- million property —section nate, County pur- veteran Webb twenty-year and sec- “discretionary” procedure, he received di- 272.001, chasing agent testified the “default” tion accountability transparency. lack of from the commis- rection and instruction opin- I do not believe Collins and that Because property court to sell the sioners I do interpretation and supports in its ion this section 263.007 uses intent, I legislative not believe this was noting he never property, of real sales using ever sec- dissent. remembered (3) sale; for a
tion 272.001 to majority systematically attempts specifica- notice and bid County’s public present- Killam Ranch eliminate evidence referenced specifically tions summary of its motion for support ed 263.007, will be sold stating, property “The holding evidence was no judgment by such 263.007, § through procedure pursuant First, majority evidence. holds pro- The bid Government Code.... Texas commissioners court November 263,007.” pursuant cess any “original minutes do not constitute Collins, intent” for a minimum bid Thus, there is evidence evidence of unlike later, years several after court intended the sale because the commissioners filed, let and this suit was the Webb pursuant to be to section was decided to was no need Commissioners Court Accordingly, 263.007. there minimum In amend the minutes to reflect no to section 272.001. Collins to “default” county required. Majority Op. bid was at 154. there no evidence the intended Here, Second, majority twenty-year holds the how- implement section 263.007. *16 ever, County purchasing agent’s evi- more than a scintilla of veteran Webb there is testimony specifically intent that he has used sec- of the commissioners court’s dence he could never remember proceed under the re- tion 263.007 and that the land sale using To con- section 272.001 is evidence quirements of section 263.007. intent. County’s proceed intent Commissioners Court clude Webb Third, majority pub- opposed as Id. concludes provision under one specifications that refer- irrelevant undermines the clear lic notice and other is intent, by stating proper- the enactment enced section 263.007 “The legislative shown separate ty through pursuant will be sold separate provisions of two 263.007, Government majority’s opinion If the is Texas Code.... requirements. correct, §to 263.007” county process pursuant a could advise bidders that The bid is under the no evidence of intent. Id. This is the sale would be structured summary a appellate judgment of section review of stringent requirements more motion, evidence, 263.007, clearly then to be bound and there is some but decline genuine are of mate- requirements upon meaning whim. This com- there issues such po- of rial fact. The evidence cannot be dis- pletely undermines the confidence simply to im- because Webb at- opens tential bidders and the door counted bidding procedures. tempted to withdraw the bid and reform proper years later. Allowing pro- counties to advertise one change proverbial Finally, majority suggests this dis- cedure and then its equity argument.” “an Id. making mind is tantamount to a “bait and switch” sent is entity My equity; though is not based on Simply put, government scheme. dissent accept allowing not be authorized to bids I do believe to “bait should bidding procedures of switch” its is un- requirements provision under one inequitable fair results. change requirements and then without lead Rather, application is based on process my basic notice and due to the bid- dissent summary judgment standard suggest promotes ders. To otherwise of correct proper interpretation of review and hold the Accordingly, I would
Collins. summary in granting
trial court erred County and in favor of Webb
judgment proceed- for further the matter
remand
ings.
MAVERICK COUNTY HOSPITAL (MCHD) and James
DISTRICT Fowler, M.D., Appellants
H. Martin, In MARTIN and Esther
Edwin
dividually Representative and as Martin, Appel
the Estate of Robert
lees.
No. 04-11-00803-CV. Texas, Appeals
Court
San Antonio.
May