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Analysis of 948 S.W.2d 787
with Regard to
the Texas Open Meetings Act
by Donald Ray Burger
Attorney at Law

Rivera v. City of Laredo, 948 S.W.2d 787 (Tex. App.--San Antonio 1997, denied).
Holding of Case: (1) the class of "interested persons" allowed to bring suit for violations of the TOMA is broad, not narrow; (2) a governmental body must post notice for "recessed" meetings if the recess is for more than to the next day; (3) the appointment of a chief of police at an illegal meeting is null and void and set aside; and (4) the statute of limitations under the TOMA is four years.
Analysis of Case: Rivera worked for the City of Laredo police department. He was disciplined by Chief Martinez. The problem was that Rivera contended Martinez was appointed chief in violation of the TOMA, and that therefore the "Chief" could not discipline him. Both sides (Rivera and the City of Laredo) moved for summary judgment in the trial court. The trial court granted the City's motion. Rivera appealed.

The first issue was whether Rivera could bring a lawsuit under the TOMA at all. Section 551.142(a) permits an "interested person" to bring an action under the TOMA. No definition of "interested person" is given in the TOMA. In City of Abilene v. Shackelford, 572 S.W.2d 742, 746 (Tex. Civ. App.--Eastland 1978 red'd on other grounds, 585 S.W.2d 665 (Tex. 1979) the appellate court gave a narrow ruling to the phrase and held that a plaintiff under the TOMA must show particular injury or damage different than the public at large. On the other hand, in City of Fort Worth v. Groves, 746 S.W.2d 907, 913 (Tex. App.--Fort Worth 1988, no writ) the court gave a broad reading to the TOMA and said an "interested person" could be a taxpayer and citizen. In agreement with Groves is Cameron County Good Gov't League v. Ramon, 619 S.W.2d 224, 230 (Tex Civ. App--Beaumont, 1981), writ ref'd n.r.e.). This court sided with the courts of appeal in Beaumont and Fort Worth, and allowed Rivera to bring the suit.

Next, the court considered whether Rivera waited too long in bringing his lawsuit. The court examined Texas law on limitations and ruled that TOMA lawsuits fall within Section 16.051 of the Texas Civil Practice and Remedies Code, and its requirement that actions be brought within four years of the incident made the basis of the lawsuit.

After deciding that Rivera could bring an action, and that he had not waited too long to do so, the court next considered whether the City of Laredo had violated the TOMA. After several meetings at which no action was taken with regard to a new police chief, the Laredo City Council met on May 4th. After an "executive session" the mayor announced that no action had been taken and the meeting was "recessed" until May 6, 1992. It was at this May 6th session that the Chief was selected. Unfortunately, no new notice was issued for the May 6th meeting because the City of Laredo believed no new notice was required because the May 6th meeting was simply a continuation of the properly noticed May 4th meeting. The court disagreed. The court noted that under AG Opinion H-100 (1977) the attorney general had stated that the notice must be "for each daily session" with the narrow exception when there is a recess to the every next day to continue consideration of a particularly long subject, and when the delay is not serve as an evasion of the TOMA. The court noted that this recess was for two days, so H-100 was not applicable.

This ruling meant that the city council had conducted an illegal meeting. Actions taken at illegal meetings are voidable. "Martinez' appointment is thus set aside and declared null and void." 948 S.W.2d at 793.

As an aside, although Rivera's attorney was awarded $10,000 in attorney fees under Section 551.142(b) because the City of Laredo had violated the TOMA, Rivera lost his main argument that the discipline against him was invalid because the Chief was improperly appointed. The court sustained the discipline under the theory that Chief Martinez was an "officer de facto", and his actions were thus binding on Officer Rivera.

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Last Revised 2/15/03

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