City of San Antonio v. Fourth Court of Appeals

820 S.W.2d 762, 34 Tex. Sup. Ct. J. 804, 1991 Tex. LEXIS 103, 1991 WL 175210

• Court: Texas Supreme Court
• Decided: September 11, 1991
• Docket: D-0119
• Status: Published

Opinions

OPINION

PHILLIPS, Chief Justice.

This mandamus proceeding arises out of three related condemnation cases instituted by the City of San Antonio pursuant to a City condemnation ordinance. The issue before us is whether the City complied with the notice provisions of the Texas Open Meetings Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17, § 3A (Vernon Supp.1991), prior to the meeting at which the City Council adopted the condemnation ordinance. The court of appeals held that the City had failed to comply with the Open Meetings Act and conditionally granted a writ of mandamus ordering the district court to declare the writs of possession issued to the City void. 793 S.W.2d 749. Because we find that the City’s notice satisfied the Open Meetings Act, we conditionally grant the writ of mandamus ordering the court of appeals to vacate its judgment.

Facts

On February 15, 1990, the City Council of San Antonio adopted a specific condemnation ordinance condemning several tracts of land in southwest Bexar County for the construction of a reservoir for the Apple-white Water Supply Project.¹ On the authority of this ordinance, the City subsequently filed these three condemnation proceedings against the owners of several of the condemned tracts. Compensation was fixed by special commissioners after a three-day hearing, and the City sought writs of possession entitling it to take possession of the condemned property.

Vamarie, Inc., the real party in interest in this proceeding, holds an oil and gas lease on the land that is the subject of these proceedings.² Before the district court issued the writs of possession, Va-marie moved to dismiss the condemnation cases, arguing that the City’s ordinance was void because the notice of the meeting at which the ordinance was adopted violated the Open Meetings Act. First, Vamarie argued that the notice of the meeting was not sufficiently specific in its description of the condemnation ordinance to adequately inform the public of the “subject” of the meeting, as required by section 3A(a) of the Act. Tex.Rev.Civ.Stat.Ann. art. 6252-17, § 3A(a) (Vernon Supp.1991). Second, Vamarie argued that the time and place of the posting of the notice did not comply with the requirements of sections 3A(c) and 3A(h) of the Act. Id. §§ 3A(c), 3A(h).

The district court denied Vamarie’s motion and issued the writs of possession to the City. Vamarie then sought mandamus relief from the court of appeals. The court of appeals held that the notice complied with subsection (a)’s subject matter requirement but that the manner of its posting violated the time and place requirements of subsections (c) and (h). 793 S.W.2d at 751, 753. The court of appeals therefore conditionally granted the writ of mandamus. The City of San Antonio now seeks mandamus relief from this court, asking us to vacate the court of appeals’ judgment.

Standard of Review

Any interested person may commence a mandamus action to stop, prevent, or reverse violations of the Texas Open Meetings Act. Tex.Rev.Civ.Stat.Ann. art. 6252-17, § 3(a) (Vernon Supp.1991). In an original mandamus proceeding, the question before the appellate court is whether the trial court abused its discretion or violated a duty imposed by law. Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex.1989). The appellate court does not exercise any independent discretion in granting or denying a mandamus request against a trial court. In reviewing the court of appeals’ decision to grant mandamus, therefore, this court must determine for itself whether the trial court abused its discretion. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985).

Sufficiency of the Notice

Section 3A of the Open Meetings Act establishes notice requirements for meetings of governmental bodies. Subsection (a) sets forth the general rule:

(a) Written notice of the date, hour, place, and subject of each meeting held by a governmental body shall be given before the meeting as prescribed by this section.

Tex.Rev.Civ.Stat.Ann. art. 6252-17, § 3A(a) (Vernon Supp.1991).

Prior to the February 15,1990 City Council meeting, the City posted the agenda for the meeting on a bulletin board inside City Hall and also on a kiosk outside the main entrance to City Hall. This agenda listed the condemnation ordinance as follows:

48. An Ordinance determining the necessity for and authorizing the condemnation of certain property in County Blocks 4180, 4181, 4188, and 4297 in Southwest Bexar County for the construction of the Applewhite Water Supply Project.

Vamarie argues that this notice does not comply with the requirements of subsection (a) because it does not describe the condemnation ordinance, and in particular the land to be condemned by that ordinance, in sufficient detail. Vamarie contends that the notice does not give adequate information to enable a reader to determine whether the City was planning to condemn her land and that therefore there was a failure to fully disclose the subject matter of the meeting, as required by subsection (a). Cox Enterprise v. Board of Trustees, 706 S.W.2d 956, 960 (Tex.1986).

On several occasions, this court has considered the extent of the notice required by the word “subject” in subsection (a). In Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 646 (Tex.1975), the challenged notice stated that the Board of Directors of the Lower Colorado River Authority would consider “the ratification of the prior action of the Board taken on October 19, 1972, in response to changes in electric power rates for electric power sold within the boundaries of the City of San Marcos, Texas.” Although conceding that the notice was “not as clear as it might be,” we held that it complied with the Act because “it would alert a reader to the fact that some action would be considered with respect to charges for electric power sold in San Marcos.” Id.

Two years later, in Texas Turnpike Authority v. City of Fort Worth, 554 S.W.2d 675 (Tex.1977), we considered the notice for a meeting of the Board of Directors of the Texas Turnpike Authority at which a resolution was passed to enlarge the Dallas-Fort Worth Turnpike. The notice stated that the Board would “[cjonsider request ... to determine feasibility of a bond issue to expand and enlarge the Dallas-Fort Worth Turnpike.” Id. at 676. The City asserted that the notice should have pointed out that this course of action was contrary to the Board’s prior declaration of intention to make the Turnpike a free road. Id. We upheld the notice, pointing out that “[tjhere is no necessity to post copies of proposed resolutions or to state all of the consequences which may necessarily flow from the consideration of the subject stated.” Id.

In our most recent opinion in this area, Cox Enterprises, Inc. v. Board of Trustees, 706 S.W.2d 956 (Tex.1986), we finally held a notice inadequate. There, the board of trustees of a school district posted notices of their closed executive sessions that listed only general topics such as “personnel,” “litigation,” and “real estate matters.” After holding that the notice provisions of the Act applied to closed as well as to public sessions, we considered the sufficiency of these notices. We concluded that “[t]he advance notice given under section 3A(a) should specifically disclose the subjects to be considered at the upcoming meeting,” id. at 959, noting that “[t]he Act is intended to safeguard the public’s interest in knowing the workings of its governmental bodies.” Id. at 960. We thus held that “[t]he Board did not provide full and adequate notice, particularly where the subject slated for discussion was one of special interest to the public.” Id. at 959.

Our decisions in the above cases were clearly based on our understanding of the purposes of the Open Meetings Act, which are to enable public access to and to increase public knowledge of government decisionmaking. The Open Meetings Act is not a legislative scheme for service of process; it has no due process implications. Rather, its purpose is to provide “openness at every stage of [a governmental body’s] deliberations.” Acker v. Texas Water Comm’n, 790 S.W.2d 299, 300 (Tex.1990). In reviewing notices under the Act, therefore, we must ensure that these core purposes are served. However, we need not go further and inquire into whether a notice was tailored to reach those specific individuals whose private interests are most likely to be affected by the proposed government action, as Vamarie would have us do. The intended beneficiaries of the Act are not individual citizens, such as the particular landowners affected by this condemnation, but members of the interested public. If a “reader” is given notice, the requirement of the Act is satisfied and its purpose served.

In the present case, we hold that the City’s notice as to the subject matter of the ordinance was sufficient to ensure that a reader was given adequate notice of the proposed governmental action. The notice informed readers (1) that the City Council would be considering a condemnation ordinance, (2) that the land subject to condemnation was located in four county blocks in southwest Bexar County, and (3) that the purpose of the proposed action was to construct the Applewhite Water Supply Project. Any readers interested in that project had more than sufficient notice that the City Council would be considering action relating to it. And readers who did own property in those blocks were on notice of some risk that their land might be condemned. That is all the Act requires.

Clearly, the City could have given more particularized notice. For example, the notice could have said:

An ordinance determining the necessity for and authorizing the condemnation of 930.315 acres in Southwest Bexar County, being parts of parcel 1 of County Block 4180, parts of parcels 2 and 4 of County Block 4181C, parts of parcel 1 of County Block 4188, and parts of P-11, P-11 A, P-12, P-13, P-13A, P-13B, P-13C, P-14, and P-14A of County Block 4297, for the construction of the Applewhite Water Supply Project.

However, even this more specific description would not ensure that all citizens owning land to be condemned by the proposed ordinance would receive notice sufficient to inform them of this fact. Only a complete metes and bounds description of tjhe land to be condemned would satisfy this standard. The agenda for the February 15, 1990 City Council meeting contained 55 items, of which the proposed condemnation ordinance was number 48. (See Appendix.) The level of detail required to give all citizens directly affected by the 55 proposed City actions specific notice as to the impact on them individually would be staggering. Far from serving the purposes of the Act, this degree of specificity would so overwhelm readers that it would prove even less informative than the current notice. Thus, we hold that, in this case, the City’s notice, although insufficient to inform the • individual landowners that their particular tracts of land were the subject of the proposed condemnation ordinance, was sufficient to meet the “subject” requirement of subsection (a) of section 3A of the Open Meetings Act.

Posting Requirements

Vamarie also challenges the manner in which the City posted its notice, arguing that the time and place of the posting did not comply with subsections (c) and (h) of section 3A of the Open Meetings Act. Subsection (c) provides:

(c) A city governmental body shall have a notice posted on a bulletin board to be located at a place convenient to the public in the city hall.

Tex.Rev.Civ.Stat.Ann. art. 6252-17, § 3A(c) (Vernon Supp.1991). Subsection (h) provides, in pertinent part:

(h) Notice of a meeting must be posted in a place readily accessible to the general public at all times for at least 72 hours preceding the scheduled time of the meeting.

Id. § 3A(h).

The City posted the agenda for the February 15, 1990 City Council meeting on a bulletin board inside the City Hall on February 12, 1990, more than 72 hours prior to the meeting. Since the City Hall building is locked each night, this notice was not continuously available to the public between the time it was posted and the time of the meeting. At about the same time as the bulletin board posting, the agenda was also posted on a kiosk located on the City Hall grounds directly in front of the main or east entrance to the building. This kiosk (see photograph' below) is a four-sided structure about the same size and shape as an old-fashioned telephone booth. Notices are posted behind glass panes that cover the four sides of the structure, each page of a notice posted separately. Although the kiosk itself is unlighted, there are several street lights near the front entrance to the City Hall, which is located on a major downtown street.

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The City contends that subsections (c) and (h) were satisfied by this double posting. It maintains that the requirement of posting notice “at a place convenient to the public” inside the City Hall was satisfied by the bulletin board posting, while the separate requirement of posting notice in “a place readily accessible to the general public at all times for at least 72 hours” before the scheduled meeting was satisfied by the kiosk posting.

The court of appeals disagreed, holding that subsections (c) and (h) of section 3A must be read together to require a single notice and to prescribe an exclusive place to post such notice, i.e., inside the City Hall. 793 S.W.2d at 752. Thus, the court interpreted (c) and (h) to require the City to post one notice inside the City Hall at least 72 hours before the scheduled meeting time and then to keep the City Hall open to the public at all times. Since the City conceded that the City Hall was not open to the public at all times during the 72-hour period before the February 15 meeting, the court of appeals held that the City had failed to comply with the Act. Id. at 753. The court of appeals believed that its reading of the Act was “exact and literal.” See Acker, 790 S.W.2d at 300.

We disagree. A literal reading of the statute compels the opposite result. Subsection (h) provides: “Notice of a meeting must be posted in a place readily accessible to the general public at all times_” No “place” is specified. “Notice of a meeting” is phrased in nonrestrictive terms, i.e., the “notice” described is not restricted to be the same notice as that mentioned in subsection (c) (as it might be if the statute read: “The notice of a meeting”). The legislature could easily have written subsection (h) to relate back to subsection (c), but it did not do so. Therefore, the legislative scheme does not require a single notice that must satisfy both subsections but permits dual notice.

Vamarie, however, points out that subsection (c) does not contain a specific time requirement and subsection (h) does not contain a specific place requirement and argues that construing these provisions as separate requirements could therefore lead to abuse. For example, the Act could arguably be satisfied by a posting in the City Hall one hour before the meeting, plus a posting in an inconvenient public place far from the City Hall for 72 hours.

These concerns are groundless. Any such unreasonable postings would not comport with the purpose of the Act, that is, to assure “that the public has the opportunity to be informed concerning the transactions of public business.” Acker, 790 S.W.2d at 300 (quoting Act of May 8,1967, 60th Leg., R.S., ch. 271, § 7, 1967 Tex.Gen.Laws 597, 598). Thus, although subsection (c) contains no specific time requirement, any notice posted under this subsection must be posted for a sufficient period of time to ensure that the public has the opportunity to read it. Furthermore, subsection (h) specifically requires that the 72-hour posting place be “readily accessible to the general public,” not in an obscure or remote location.

It is the approach urged by Vamarie and adopted by the court of appeals, rather than the City’s position, which strains common sense and will more likely result in abuse. Many, if not most, cities are ill able to afford the additional security and utility costs which an “open door” policy for the noctumally curious would require. Before we mandate such an extravagant use of public resources, we should require a clear and unequivocal expression in the statutory language that the legislature intended such a result. Absent a clear legislative directive, a statute should not be construed so as to produce an absurd or foolish result if it is reasonably susceptible of an alternative construction. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 3252, 73 L.Ed.2d 973, 983 (1982); Stobnicki v. Textron, Inc., 868 F.2d 1460, 1463 (5th Cir.1989); McKinney v. Blankenship, 154 Tex. 632, 642, 282 S.W.2d 691, 698 (1955).

Thus, whether we rely on the plain meaning of the statute or the policy underlying it, the City’s postings satisfied the requirements of subsections (c) and (h). The first notice was posted on a bulletin board inside the City Hall more than 72 hours before the meeting, and the second notice was posted on the kiosk directly in front of the main entrance to City Hall more than 72 hours before the meeting. These twin postings made the notice readily accessible to members of the general public seeking information about City Council business at all times during the 72-hour period preceding the meeting.

Conclusion

For the above reasons, we hold that the City fully complied with the notice requirements of the Open Meetings Act. Because the district court did not abuse its discretion in issuing the writs of possession to the City, the court of appeals erred in issuing the writ of mandamus. We therefore conditionally grant the City’s petition for writ of mandamus. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). The writ will issue only if the court of appeals does not vacate its mandamus judgment.

Dissenting and concurring opinion by GONZALEZ, J. Dissenting opinion by MAUZY, J. Dissenting opinion by DOGGETT, J., joined by GAMMAGE, J.

APPENDIX

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1 . The ordinance condemned 15 separate tracts of land, encompassing a total of 930.315 acres. Six of these tracts, with a total area of 590.821 acres, are the subject of the condemnation proceedings that form the basis for this mandamus action. These tracts are part of a larger, 1,559.9-acre tract commonly known as the Walsh Ranch.

2 . Vamarie owns an oil and gas lease covering the entire 1,559.9-acre Walsh Ranch, including the 590.821 acres that are the subject of these proceedings.