in Re City of Galveston

• Court: Court of Appeals of Texas
• Decided: January 9, 2015
• Docket: 14-14-01005-CV
• Status: Published

Opinion

ACCEPTED 14-14-01005-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 1/9/2015 6:10:53 PM CHRISTOPHER PRINE CLERK

No. 14-14-01005-CV

In the Fourteenth Court of Appeals FILED IN 14th COURT OF APPEALS Houston, Texas HOUSTON, TEXAS 1/9/2015 6:10:53 PM CHRISTOPHER A. PRINE Clerk CITY OF GALVESTON, Relator

vs.

INDIAN BEACH PROPERTY OWNERS’ ASSOCIATION, INC., Real Party in Interest

Original Proceeding on Petition for Writ of Mandamus from the 122nd Judicial District Court Galveston County, Texas

RESPONSE TO PETITION FOR WRIT OF MANDAMUS

Angie Olalde State Bar No. 24049015 Andrew J. Mytelka State Bar No. 14767700 Stephen G. Schulz State Bar No. 17848300 GREER, HERZ & ADAMS, L.L.P. 2525 South Shore Blvd., Ste. 203 League City, Texas 77573 (409) 797-3200 (Telephone) (866) 422-4406 (Facsimile)

COUNSEL FOR REAL PARTY-IN INTEREST INDIAN BEACH PROPERTY OWNERS’ ASSOCIATION, INC. IDENTITY OF PARTIES AND COUNSEL

Relator Real Party in Interest

City of Galveston Indian Beach Property Owners’ Association, Inc. Relators’ Trial and Appellate Counsel Lead Counsel on Appeal John J. Hightower Scott Bounds Angie Olalde OLSON & OLSON, L.L.P. State Bar No. 24049015 Wortham Tower, Suite 600 Greer, Herz & Adams, L.L.P. 2727 Allen Parkway 2525 South Shore Blvd., Suite 203 Houston, Texas 77019-2133 League City, Texas 77573

Trial Counsel for Real Parties in Interest Respondent Andrew J. Mytelka Hon. John Ellisor State Bar No. 14767700 122nd Judicial District Court Stephen G. Schulz Galveston County, Texas State Bar No. 17848300 600 59th Street, Room 4304 One Moody Plaza, 18th Floor Galveston, Texas 77551 Galveston, Texas 77550 (409) 766-2275 Additional Party

Judy Shorman

Counsel for Judy Shorman

Robert Shattuck, Jr. 1018 23rd Street Galveston, Texas 77550

i TABLE OF CONTENTS

Statement of the Case............................................................................................. vii

Issues Restated ....................................................................................................... vii

Statement of Facts .....................................................................................................1

Summary of the Argument........................................................................................6

Argument...................................................................................................................8

A. Standard of Review and Applicable Law.............................................8

1. Standard of Review in Mandamus Proceedings ...........................8

2. The Texas Open Meetings Act .....................................................9

3. The City bears the burden of establishing privilege or a TOMA exception .....................................................................11

B. Response to the City’s discussion on Indian Beach’s allegations ..... 12

C. The trial court’s factual determination was not arbitrary or unreasonable .......................................................................................12

1. Procedures taken before or after a closed session cannot cure TOMA violations that occur during a closed session ........12

2. TOMA’s legal advice exception is narrow, and any discussion straying from legal advice is improper, and illegal....................................................................................15

3. The trial court’s order determined facts that cannot be challenged on mandamus ...........................................................19

4. The City’s characterizations of the records contents should not be considered ............................................................23

ii D. Extraneous recordings are not sought ................................................25

E. If the counsel strayed from its posted agenda topic, it violated TOMA’s notice requirements.............................................................25

Conclusion and Prayer ............................................................................................28

iii INDEX OF AUTHORITIES

Cases

Acker v. Tex. Water Comm'n, 790 S.W.2d 299 (Tex. 1990) ........................................................................ passim

Bd. of Adjustment of City of Univ. Park, Tex. v. Legacy Hillcrest Inv., L.P., No. 05-13-1128-CV, 2014 WL 6871403 (Tex. App.—Dallas 2014, no pet. h.).......................................................................15

City of Farmers Branch, et.al vs. Ramos, 235 S.W.3d 462 (Tex. App.—Dallas 2007, no pet.) ................................... 9,11,25

City of Prescott v. Town of Chino Valley, 803 P.2d 891 (Ariz. 1990) ....................................................................................17

City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762 (Tex. 1991) .......................................................................... 10,16

Cox Enter., Inc. v. Bd. of Trustees, 706 S.W.2d 956 (Tex. 1986) ........................................................................ passim

Davis v. Huey, 571 S.W.2d 859 (Tex. 1978) ..................................................................................9

Diocese of Galveston-Houston v. Stone, 892 S.W.2d 169 (Tex.App—Houston [14th Dist.] 2011, orig. proceeding) .........22

Fairchild v. Lib. Indep. Sch. Dist., 466 F. Supp.2d 817 (E.D. Tex. 2006) ..................................................................11

Finlan v. City of Dallas, 888 F. Supp. 779 (N.D. Tex. 1995) ........................................................... 13,15,18

GAF Corp. v. Caldwell, 839 S.W.2d 149(Tex. App.—Houston [14th Dist.] 1992, orig. proceeding) ....9,22

iv Gardner v. Herring, 21 S.W.3d 767 (Tex. App.—Amarillo 2000, no pet.) .................................. passim

Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) ................................................................................16

In re Carbo Ceramics Inc., 81 S.W.3d 369 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding) ........23

In re E.I. DuPont de Nemours and Co., 130 S.W.3d 218 (Tex. 2004) ................................................................................11

In re EPIC Holdings, Inc., 985 S.W.2d 41 (Tex. 1998) ....................................................................................8

In re Ford Motor Co., 165 S.W .3d 315 (Tex. 2005) .................................................................................8

In Re Geico Gen. Ins. Co., No. 14-06-00423-CV, 2006 WL 3511694 (Tex. App.—Houston [14th Dist.] Dec. 7, 2006, .....................................................................................25

In re La. Tex. Healthcare Mgmt., L.L.C., 349 S.W.3d 688 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) ......22

Killam Ranch Properties, Ltd. v. Webb County, 376 S.W.3d 146 (Tex. App.—San Antonio 2012, pet. denied) ...........................22

Markowski v. City of Marlin, 940 S.W.2d 720 (Tex. App.—Waco 1997, writ denied) ................................ 10,24

Olympic Waste Servs. v. City of Grand Saline, 204 S.W.3d 496 (Tex. App.—Tyler 2000, no pet.)................................... 11,12,15

People v. Whitney, 578 N.W.2d 329 (Mich. App. 1998) ....................................................................17

Tex. State Bd. of Pub. Accountancy v. Bass, 366 S.W.3d 751 (Tex. App.—Austin 2012, no pet.)............................................17

v Underwood v. City of Presque Isle, 715 A.2d 148 (Me. 1998) .....................................................................................17

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ................................................................. 8, 9, 22, 23

Statutes Tex. Gov't Code § 551.002 (Vernon 2012) ...............................................................9

Tex. Gov't Code § 551.041 ......................................................................................25

Tex. Gov't Code § 551.071 (Vernon 2012) ....................................................... 10,26

Miscellaneous Tex. Atty. Gen. Op. DM-98 (1992) .........................................................................27

Tex. Atty. Gen. Op. JC-0057 (1999) .......................................................................27

Tex. Atty. Gen. Op. JC-0233 (2000) ................................................................. 15,17

Tex. Atty. Gen. Op. JM-100 (1983) .................................................................. 15,18

Tex. Atty. Gen. Op. MW-0578 (1982) ....................................................................10

Tex. Atty. Gen. Op. No. JC-0506 (2002) ................................................................11

Tex. Atty. Gen. Op. No. 96-058 .............................................................................11

vi STATEMENT OF THE CASE

Nature of the The underlying case raises Texas Open Meetings Act underlying (“TOMA”) violations and requests for declaratory and proceeding injunctive relief based upon actions taken by the City of Galveston’s city council in a closed, executive session on February 23, 2012. Rec. tab 10 ¶¶7-8 pp.153-54.1

Respondent Hon. John Ellisor 122nd Judicial District Court, Galveston County

Trial court Indian Beach Property Owners Association, Inc. proceedings at issue (“Indian Beach”) filed a motion asking the trial court to conduct an in camera inspection of the executive session recording, which the City opposed. Supp. Rec. tabs 1-2.2 The trial court granted the request. Rec. tab 8. The City of Galveston submitted the closed session recording (Rec. tab 9), and later filed a motion for summary judgment seeking to dismiss Indian Beach’s TOMA claim. Rec. tab 3. The trial court denied the City’s summary judgment motion. Rec. tab 18.

The trial court issued a separate order finding the city council exceeded TOMA’s limited statutory scope for executive sessions, and ordered the City to produce the recording of the executive session. Rec. tab 1.

Action from which The City challenges the trial court’s finding that the city Relator seeks relief council exceeded TOMA’s narrow legal advice exception, and its order to produce the closed session recording.

1 Citations are to the record on appeal filed by the City, and are formatted as: Rec. tab # [pinpoint page or paragraph]. Pinpoint page numbers are to the digital PDF page number. 2 Indian Beach files with this brief a short supplemental record containing the motion for in camera inspection and the City’s response.

vii ISSUE RESTATED

The trial court did not abuse its discretion when it reviewed the

pleadings and evidence and found the city council exceeded the

narrow scope of the Texas Open Meetings Act’s exception allowing

closed sessions to obtain legal advice; nor did the trial court abuse its

discretion by ordering the City to produce the taped recording of the

actions exceeding the open meetings exception for the Shorman

matter.

viii STATEMENT OF FACTS

The underlying dispute arises from Judy Shorman’s permit application to

approve a general land use plan (“GLUP”) to allow her to build and operate a dog

kennel at her home. Rec. tab 10 ¶8 p.153. The crux of the original dispute was the

location of the kennel, as Shorman’s home is a lone tract in the middle of the

Indian Beach Subdivision, though it is not included within that subdivision’s plat.

Id.; Rec. tab 20 doc. 16-1 p.542 (map); Rec. tab 3 exh.2 p.33 (referencing Ms.

Shorman’s property as “a parcel of land that is within the Indian Beach

homeowners area.”).

Indian Beach Property Owners’ Association, Inc. (“Indian Beach”) objected

to Shorman’s GLUP application. Rec. tab 14 pp.201, 220-222 (verbatim minutes

from two Planning Commission meetings). After two public hearings, Galveston’s

Planning Commission denied Shorman’s application on January 24, 2012. Rec. tab

14 p.226; Rec. tab. 3 exh. 1 p.25. Under Galveston’s city ordinances, the Planning

Commission had “the power to make final determination on General Land Use

Plans.” Galv. City Ordinance Nos. 93-33, 98-52, 08-021 (attached in Appendix

A).3

Ms. Shorman appealed the denial to Galveston’s city council under City

3 Ordinance No. 93-33 is codified as a part of Section 29-40 of the City of Galveston Zoning Standards (1991) (Appendix A). Proposed uses, such as for a dog kennel, must be based upon a GLUP approved by the Planning Commission. Ord. Sec. 29-40(b) (Appendix A). Any “proposed use” in a GLUP is subject to the Planning Commission’s review and approval.

1 ordinance 98-16. Rec. tab 20 doc. 16-1 p.532. The appeal was placed on the

council’s February 23, 2012 workshop and regular council agendas. Rec. tab 3 exh.

1 p.25 & exh. 4 p.57.

Legal opinions provided by Galveston’s city attorney show the city’s

established policy was to review Planning Commission decisions on GLUP

applications for abuse of discretion. Rec. tab 14 pp.229-36 (Planning

Commission’s decision should be upheld if it is not arbitrary or capricious; that is,

if there is some evidence supporting the decision); see also Rec. tab 14 pp.238-39

(“After further review, it remains our opinion that the standard of review is abuse

of discretion.”). This policy coincides with city ordinances giving discretion to the

Planning Commission in reviewing GLUP applications. See Galv. City Ord. 93-33

(Appendix A). It is also consistent with common sense, because if the Planning

Commission had no discretion to deny a GLUP application for the permitted use.

There would be no need to require a public hearing before the Planning

Commission; rather, approval could be left to staff action.

The council reviewed its agenda at its morning workshop on February 23,

2012. Rec. tab 3 exh. 2 pp.31-53.4 At the workshop, one council member asked

whether the Planning Commission could deny the GLUP application, since a dog

4 The City submitted three DVDs containing a video recording of the workshop meeting only. The City’s 4:00 p.m. regular council meeting is available at http://galvestontx.swagit.com/play/02212013-677 (see Rec. tab 4 ¶14 p.7), and the minutes from the 4:00 p.m. regular meeting are at Rec. tab 3 exh. 5 pp.64-72.

2 kennel was listed as a “permitted use.”5 Rec. tab 3 exh. 2 pp.40-41. The council

member’s question included a caveat that if the GLUP included a permitted use

and there were no objections to the GLUP, could the Planning Commission deny

the application. Id. She then stated that the City’s written legal opinion actually

answers her question. Id. (referencing legal opinions available at Rec. tab 14

pp.229-39). In Ms. Shorman’s case though, there were objections to the GLUP.

Rec. tab 14 pp.195-226. The council member also asked about the treatment of

specific use permits. Rec. tab 3 exh. 2 p.41. While the City gave discretion to the

Planning Commission for GLUP applications, council retained authority to review

actions taken on specific use permits. See Rec. tab 3 exh. 3 p.41 (referencing

specific use permits that council has total discretion to approve or deny).

The City Attorney Dottie Palumbo responded to these questions, stating she

could provide factual information, but “really can’t answer the legal question out in

the open.” Rec. tab 3 exh.2 p.41. She explained that one of the conditions for

GLUP approval is whether the proposed usage is compatible with adjacent uses.

5 A permitted use is a potential way in which an owner can develop property. The long list of permitted uses for Ms. Shorman’s property include constructing and operating a mortuary, electrical substation, convenience store, or even an outdoor amusement park. Rec. tab 3 exh. 5 p.244. For obvious reasons, the city’s Planning Commission has the power to deny GLUP applications where the use is not compatible with the surrounding area—such as an application to place an outdoor amusement park in the middle of a subdivision. See generally Galv. Ord. 29- 40, including Ord. Nos. 93-33, 98-52, 08-021, 98-16 (Appendix A). Therefore, in a GLUP application proposing to develop land to a “permitted use,” the Planning Commission has discretion to consider compatibility with neighboring properties when deciding whether to grant or deny it. See generally id.

3 Id. p.42. She then advised that “any questions that you might have on the line of

since it is listed as a use, what’s the legal implication, that would be better

answered in close[d] session.” Id. Ms. Palumbo made clear that before going into

closed session, all factual questions should be answered in the public meeting. Id.

pp.42-43.

Around noon, the council broke for executive session. See Rec. tab 3 exh.1

¶16 p.27. An audio recording of the closed session exists, and is the subject of the

order at issue in this proceeding. According to the City, the council discussed the

Shorman matter for approximately 22 minutes. The City does not contend that the

closed session was for the purpose of discussing pending or threatened litigation.

Rather, the City claims the closed session was necessary to obtain legal advice. No

one has explained why a closed session was necessary or appropriate when written

legal opinions stating city policy on council’s standard of review were already

publicly available. Rec. tab 14 pp.229-39.

At about 4:00 p.m., after the closed session, the council reconvened for its

public meeting. Rec. tab 3 exh. 5 p.64. At that meeting, the council heard from Ms.

Shorman and from members of the public, then voted to overturn the Planning

Commission’s decision. Id. pp.65-66.

Indian Beach filed the underlying lawsuit. On January 10, 2013, Indian

Beach moved for the trial court to conduct an in camera inspection of the executive

4 session recording. Supp. Rec. tab 1. The City objected to in camera inspection.

Supp. Rec. tab 2. A hearing was held on February 20, 2013. Rec. tab 20. On March

1, 2013, Judge Ellisor issued an order granting in camera review. Rec. tab 8 p.144.

The City then filed a motion for summary judgment seeking to dismiss

Indian Beach’s Texas Open Meetings Act or “TOMA” claim. Rec. tab 3. Indian

Beach responded, and the parties filed additional reply and surreply briefs. Rec.

tabs 14-17. The trial court considered the pleadings and evidence, and denied the

City’s motion for summary judgment—necessarily finding that a fact issue

precluded summary judgment on Indian Beach’s TOMA claim. Rec. tab 18 (order

denying summary judgment).

On December 10, 2014, the trial court issued an order stating that after its

review of the audiotape and draft transcript of the closed session, it found that the

city council’s closed session for the stated purpose of seeking legal advice

exceeded TOMA’s scope. Rec. tab 1 p.9. The court also found that a governmental

body may not invoke the attorney-client privilege under Section 551.071 to

convene a closed session but then discuss matters outside of that provision. Id. The

trial court ordered the City to produce the executive session recording. Id. This

mandamus proceeding followed.

5 SUMMARY OF THE ARGUMENT

The City asks the Court to vacate its order compelling disclosure of the

recording. The City’s requested relief necessarily includes the improper request

that this Court consider and reverse the trial court’s findings in a mandamus

proceeding. Not only did the trial court find that the city council exceeded

TOMA’s scope, the trial court also denied the City’s prior motion for summary

judgment which sought to dismiss Indian Beach’s TOMA claim. Before entering

the order at issue here, the trial court considered the pleadings and evidence on file,

conducted an oral hearing at which evidence was presented, and inspected the

closed session recording and transcript. The trial court then determined that the

City is not entitled to judgment as a matter of law on the TOMA claim and further

determined that the City violated TOMA in closed session. That is, it found city

council member discussions exceeded the scope of TOMA’s legal advice

exception, and discussed general policy considerations.

By going beyond legal advice, the council’s closed session violated TOMA,

and those discussions should have been public. The council’s discussions also

violated TOMA in another way: by privately discussing topics that were not

properly noticed for discussion in any meeting agenda, city council not only

exceeded the legal advice exception, but also violated TOMA’s notice

requirements.

6 Because sufficient evidence supports the trial court’s finding and order,

mandamus relief must be denied. In the alternative, if the Court holds the trial

court’s order compels production of recordings not relevant to the underlying

litigation, mandamus may be conditionally granted only in part, to allow the trial

court to reform its order and ensure production of only the recording’s relevant

portions.

7 ARGUMENT

The trial court did not abuse its discretion when it reviewed the pleadings and evidence and found the city council exceeded the narrow scope of the Texas Open Meetings Act’s exception allowing closed sessions to obtain legal advice; nor did the trial court abuse its discretion by ordering the City to produce the taped recording of the actions exceeding the open meetings exception for the Shorman matter.

A. Standard of Review and Applicable Law

1. Standard of Review in Mandamus Proceedings

Mandamus will only issue to correct a clear abuse of discretion. Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court abuses

its discretion if it acts without reference to any guiding rules or principles, or acts

in an arbitrary or unreasonable manner. In re Ford Motor Co., 165 S.W.3d 315,

317 (Tex. 2005); In re EPIC Holdings, Inc., 985 S.W.2d 41, 56 (Tex. 1998) (orig.

proceeding). Relators face a very heavy burden to show abuse of discretion, as they

must “establish that the facts and law permit the trial court to make but one

decision.” In re Epic Holdings, 985 S.W.2d at 56. Failing this, mandamus relief

must be denied.

An appellate court will not determine fact questions on mandamus, or

substitute its own judgment for the trial court’s judgment. Id. (citing Walker, 827

S.W.2d at 839). Where the trial court has resolved a factual issue, a reviewing

court must defer to that resolution. Id. Therefore, if “some evidence reasonably

8 supports the trial court’s decision,” no abuse of discretion has occurred and

mandamus cannot issue. Id. (citing Davis v. Huey, 571 S.W.2d 859, 862 (Tex.

1978)); see also GAF Corp. v. Caldwell, 839 S.W.2d 149, 150 (Tex. App.—

Houston [14th Dist.] 1992, orig. proceeding) (“Even if the reviewing court would

have decided the issue differently, it cannot substitute its decision for that of the

trial court unless the decision is shown to be arbitrary and unreasonable”).

2. The Texas Open Meetings Act

The Texas Open Meetings Act requires that “every regular, special, or called

meeting or session of every governmental body shall be open to the public, except

as provided by [TOMA].” TEX. GOV’T CODE § 551.002 (Vernon 2012). TOMA’s

scope is broad, and its exceptions are few, and are narrowly construed—this is

“consistent with the recommendation of Woodrow Wilson that ‘Government ought

to be all outside and no inside.’” Acker v. Tex. Water Comm’n, 790 S.W.2d 299,

300 (Tex. 1990) (citing Cox Enter., Inc. v. Bd. of Trustees, 706 S.W.2d 956, 958

(Tex. 1986) and quoting Woodrow Wilson, The New Freedom 76 (1961)); see also

City of Farmers Branch, et.al v. Ramos, 235 S.W.3d 462, 466 (Tex. App.—Dallas

2007, no pet.) (TOMA requires every meeting of a governmental body shall be

open to the public, with certain narrowly drawn exceptions). TOMA’s provisions

are mandatory, and must be liberally construed in favor of open government. City

of Farmers Branch, 235 S.W.3d at 466-67.

9 The Texas Supreme Court mandates ‘exact and literal compliance’ with

TOMA. Acker, 790 S.W.2d at 300.; see also City of San Antonio v. Fourth Court of

Appeals, 820 S.W.2d 762, 768 (Tex. 1991); Gardner v. Herring, 21 S.W.3d 767,

776 (Tex. App.—Amarillo 2000, no pet.); Markowski v. City of Marlin, 940

S.W.2d 720, 724 (Tex. App.—Waco 1997, writ denied). TOMA “simply does not

permit closed meetings…except where…specifically authorized.” Tex. Atty. Gen.

Op. MW-0578 at 3 (1982) (stating Texas Employment Commission cannot hold

closed sessions to review unemployment insurance benefits despite risk that

embarrassing information could be publicly disclosed); see also Tex. Atty. Gen.

Letter Op. No. 96-058 (testing committees may not use executive session to shield

test questions from public).

TOMA’s few exceptions are narrowly drawn—including the attorney advice

exception under section 551.071. See Acker, 790 S.W.2d at 300; Cox Enter., 706

S.W.2d at 958. Under Section 551.071, a governmental body may not conduct

private consultations with its attorney unless it seeks advice about (1) pending or

contemplated litigation or (2) a settlement offer, or (3) on a matter in which the

duty of the attorney to the governmental body under the Texas Disciplinary Rules

of Professional Conduct clearly conflicts with TOMA. TEX. GOV’T CODE §

551.071 (Vernon 2012). The City argues the third exception shields the executive

session from disclosure because the Council sought legal advice. The City does not

10 claim that any other exception applies to its private discussion about the Shorman

3. The City bears the burden of establishing privilege or a TOMA exception. Alleging an exception to TOMA is an affirmative defense that the

governmental entity bears the burden to prove. City of Farmers Branch, 235

S.W.3d at 466 (citing Olympic Waste Servs. v. City of Grand Saline, 204 S.W.3d

496, 504 (Tex. App.—Tyler 2000, no pet.)). Similarly, a party asserting a privilege

has the burden to establish that privilege. In re E.I. DuPont de Nemours and Co.,

130 S.W.3d 218, 223 (Tex. 2004).

The trial court found the City did not meet its burden, because it found the

council’s discussions violated TOMA’s scope and that general discussions of

policy unrelated to legal matters are improper under TOMA. Rec. tab 1 p.9. If

discussion at the closed session exceeded TOMA’s scope, the communications at

issue are not privileged. See Tex. Atty. Gen. Op. No. JC-0506 (2002) (if the

attorney-client privilege does not apply to an attorney-client consultation closed

under section 551.071 a court may find the governmental body violated TOMA);

see also Fairchild v. Lib. Indep. Sch. Dist., 466 F. Supp.2d 817, 823 (E.D. Tex.

2006) (TOMA exception could not shield tapes that ISD had no expectation of

privacy in, where plaintiff was present at the meeting). Here, because the City did

not meet its burden to establish privilege, the trial court could not have abused its

11 discretion in ordering production of the closed session recording. See Olympic

Waste Servs., 204 S.W.3d at 504 (evidence simultaneously showed city did not

establish TOMA exception as an affirmative defense and that the city violated

TOMA).

B. Response to the City’s discussion on Indian Beach’s allegations

As an initial matter, Indian Beach must respond to the City’s statement that

Indian Beach’s pleadings “are based on incorrect law.” Br. at 17. This strong

pronouncement lacks any explanation or citation to case law or statute. Rather, the

statutes, case law, and relevant Attorney General opinions cited herein show that, if

the City Council exceeded the narrow TOMA exception for seeking legal advice

during the 22 minutes that they privately discussed the Shorman matter, their

closed session was illegal—just as Indian Beach alleges. See Acker, 790 S.W.2d at

300; Gardner, 21 S.W.3d at 776; Olympic, 204 S.W.3d at 503-04; Finlan v. City of

Dallas, 888 F. Supp. 779, 783 (N.D. Tex. 1995).

C. The trial court’s factual determination was not arbitrary or unreasonable.

1. Procedures taken before or after a closed session cannot cure TOMA violations that occur during closed session. There is no dispute that the executive session qualified as a meeting of a

quorum of the city council under TOMA. “When a majority of a public decision-

making body is considering a pending issue, there can be no ‘informal’ discussion.

12 There is either formal consideration of a matter in compliance with the Open

Meetings Act, or an illegal meeting. Acker, 790 S.W.2d at 300.

The City states it complied with TOMA because a final vote occurred in

public hearing, and because it alleges it properly noticed the Shorman matter on its

agenda. The City’s argument implies that if it meets TOMA’s notice requirements

and makes a formal vote in public meeting, it can discuss anything it wants to in

executive session. In fact, the City’s attorney told the trial court that it does not

matter what was discussed during the executive session. See Rec. tab 20 p.319 (“I

think that this open meeting thing is very overworked. No one likes closed

meetings but sometimes they’re necessary. Regardless of what went on back there,

in this situation here I don’t think it matters what they did back there. There

was hours and hours of this thing outside talked about in the public. I was even

there for some of it.”) (emphasis added).

The argument that it does not matter what goes on in executive session as

long as there is some amount of deliberation or a final vote in public directly

contradicts TOMA and well-established case law on TOMA. See Acker, 790

S.W.2d at 300; Cox Enter., 706 S.W.2d at 959; Finlan, 888 F. Supp. at 783.

Procedural compliance with TOMA in areas such as notice or a final voting does

not, and cannot, excuse overstepping TOMA’s strict limitations on executive

sessions. See Finlan, 888 F. Supp. at 783 (if TOMA exception does not apply and a

13 closed meeting is held then the meeting violates TOMA regardless of whether it

complied with the statute’s procedural steps).

Executive sessions cannot be invoked to circumvent TOMA, merely because

an exception to TOMA is referenced. Cox Enter., 706 S.W.2d at 959. Instead,

“[t]he executive and legislative decisions of our governmental officials as well as

the underlying reasoning must be discussed openly before the public rather than

secretly behind closed doors.” Acker, 790 S.W.2d at 300 (citing Acts 1967, ch.

271, § 7, 1967 Tex. Gen. Laws 597, 598).6 In Acker, a permit application for a

wastewater treatment plant was considered in public hearing, and Acker alleged

that during a bathroom break from the public hearing, two of the three

Commissioners were overheard discussing the application and Acker’s costs

associated with a subdivision ordinance. Acker, 790 S.W.2d at 300. The two

Commissioners voted to deny the permit when the hearing reconvened. Id. The

Texas Supreme Court admonished this alleged behavior, stating that the law

requires a state agency’s decisionmaking in contested administrative cases (such as

in this case) to be open. Id. at 299. The Court then held that a meeting of a majority

of the Commissioners to privately discuss contested issues violates TOMA. Id. at

302. Because Acker was an appeal from summary judgment, the Court found the

Commissioners’ affidavits raised fact issues requiring a trial on the question of 6 Acker and Cox are two of the most-cited Texas Supreme Court cases on TOMA; the City fails to cite either of them.

14 whether the Commissioners did discuss the permit application. Id. The City’s

suggestion that it does not matter what is discussed in executive session is flatly

contradicted by binding precedent.

2. TOMA’s legal advice exception is narrow, and any discussion straying from legal advice is improper and illegal. TOMA does allow for closed discussions for the very strict and narrow

purpose of obtaining legal advice. See Tex. Atty. Gen. Op. JM-100 at 2 (1983)

(attorney-client privilege applies under TOMA but “the communication must be

related to an opinion on law or legal services or assistance in some legal

proceeding.”). This exception is restricted to either a specific legal proceeding—

which does not apply here—or to “legal matters.” Id. Once the conversation strays

into other topics such as “[g]eneral discussion of policy” TOMA’s narrow legal

advice exception is exceeded. Id. Examples of communications that exceed

TOMA’s attorney-client exception are discussions of the merits of a proposed

contract, financial considerations, or other nonlegal matters during executive

session. Tex. Atty. Gen. Op. JC-0233 at 3-4 (2000); see also Olympic Waste

Servs., 204 S.W.3d at 503-04 (discussion about resulting contractual options

exceeded TOMA’s legal advice exception); Finlan 888 F. Supp. at 790 (“[i]t is

hard” to see how the “specific, limited, and narrow” real estate exception to

TOMA applies to “lobbying plans in the Texas legislature”); Bd. of Adjustment of

City of Univ. Park, Tex. v. Legacy Hillcrest Inv., L.P., No. 05-13-1128-CV, 2014

15 WL 6871403, at *5 (Tex. App.—Dallas 2014, no pet. h.) (finding executive

session did not exceed legal advice scope when the evidence showed that the

merits of the cases were not discussed).7

The City argues that privilege must attach “to the complete communication

between client and counsel.” Br. at 15. This broadly stated rule cannot be applied

to create a gaping hole in TOMA that would allow governmental bodies to shield

deliberations from the public using the guise of privilege. See Acker, 790 S.W.2d at

301 (holding officials cannot be allowed to meet and deliberate privately about

contested proceedings without eviscerating TOMA). Texas’ requirement that

government shall be open at all levels, including administrative decisionmaking,

requires governmental bodies to carefully consult with their attorneys so that their

discussions do not exceed the realm of legal advice. See City of San Antonio, 820

S.W.2d at 765 (TOMA’s purposes include enabling public access to, and

increasing public knowledge of, government decisionmaking). The city council

understood this (see Rec. tab 3 exh. 3 p.43), but the trial court found the council

did not restrict its discussions accordingly. Even case law that discusses only

privilege issues, and not TOMA issues, recognizes that the attorney-client privilege

cannot be used to shield or cloak nonprivileged communications. See Huie v.

7 The City cites Hillcrest in support of its argument. Hillcrest rested on evidence establishing that the merits of the cases were not discussed in closed session. Bd. of Adjustment of City of Univ. Park, 2014 WL 6871403, at *5. Here, the trial court found the city council’s discussions exceeded TOMA’s scope and delved into general policy considerations. Rec. tab 1.

16 DeShazo, 922 S.W.2d 920, 923 (Tex. 1996). Here, when legal advice ends and

discussions turn to general policy or other nonprivileged matters, TOMA is

exceeded.

Texas’ treatment of providing only narrow substantive leeway for attorney-

client communications in closed session is consistent with other states’ treatment

of the attorney-client exception to public meetings. See Tex. Atty. Gen. Op. JC-

0233 at 4 (2000) (citing City of Prescott v. Town of Chino Valley, 803 P.2d 891,

896 (Ariz. 1990) for its statement that legal advice does not include discussing

merits of enacting legislation; Underwood v. City of Presque Isle, 715 A.2d 148

(Me. 1998) holding that a zoning board cannot deliberate on the merits of an

application in closed session; and People v. Whitney, 578 N.W.2d 329, 337 (Mich.

App. 1998) holding that a discussion of a legal opinion in a closed meeting must be

limited to legal advice and does not authorize discussion of public policy).

The City cites Tex. State Bd. of Pub. Accountancy v. Bass in support of its

argument. Tex. State Bd. of Pub. Accountancy v. Bass, 366 S.W.3d 751 (Tex.

App.—Austin 2012, no pet.). That case involved review of administrative

disciplinary proceedings against Enron accountants, and held against the

accountants. Id. at 752. In Bass, the parties filed cross-motions for summary

judgment, and the Austin Court of Appeals considered whether Bass’ proof of a

TOMA violation related sufficiently to his requested relief to void the Board’s

17 vote. Id. at 762-763. Bass supports that, if a governmental body convenes a closed

session to obtain legal advice, the communications must be related to an opinion on

law or legal services, or assistance in some legal proceeding. Id. at 759. But Bass is

an outlier among TOMA cases, and among summary-judgment cases, in that it (1)

considered discussions in a public meeting as “conclusive” evidence on summary

judgment to defeat a claim that the board violated the scope of a separate, closed

executive session (its finding was not tested in any petition for review), and in that

it (2) states to establish that the Board’s orders violated TOMA, the accountants

had to show that an actual vote or decision was made in closed session. Id. at 762.

The second statement cannot be read or applied on its own without contradicting

TOMA and Texas case law on TOMA. TOMA’s narrow exceptions can be

violated in ways other than taking a final vote in closed session. Several cases and

Attorney General opinions provide that exceeding the scope of a TOMA exception

violates TOMA. Gardner, 21 S.W.3d at 776 (evidence supported that TOMA’s

section 551.071 exception was exceeded); Finlan, 888 F. Supp. at 783; Tex. Atty.

Gen. Op. JM-100 at 2. Bass appears to rest its holding on a link between the

TOMA allegations in that case and the Enron accountants’ requested relief. It

cannot control here, because the ultimate relief is not at issue here. The question in

this proceeding is whether the trial court abused its discretion in its order,

including in its finding that the city council improperly exceeded TOMA in closed

18 session. The trial court’s order is supported by ample evidence; the court did not

abuse its discretion.

3. The trial court’s order determined facts that cannot be challenged on mandamus. The trial court’s determination of any fact is not reviewable by this Court on

mandamus. The trial court reviewed the recording and transcript of the closed

session, and found that (1) during closed session, the council’s discussions

exceeded the stated purpose of seeking legal advice and (2) a governmental body

may not invoke the attorney-client privilege under Section 551.071 to convene a

closed session but then discuss matters outside of that provision. Rec. tab 1, p.9.

Apart from the closed session recording, other evidence indicates that the

council strayed from pure legal advice, as TOMA requires. This makes sense,

because if no evidence existed other than the closed session recording, Indian

Beach would never have known to bring a suit alleging a TOMA violation. The

additional evidence includes:

- Evidence submitted at the hearing on Indian Beach’s motion for court review of closed executive session. Hearing Exhibits 5D and 5E are the Planning Commission’s verbatim minutes concerning the Shorman GLUP application, and hearing exhibit 6 includes Ms. Shorman’s appeal, the staff report, 20 pages of handouts including the GLUP site plan, and the February 23, 2012 regular council meeting minutes. Rec. tab 20 exhs. 5D, 5E, 6 at docs. 16-1 & 16-2.

- All evidence submitted either for or against the City’s summary judgment motion. The summary-judgment evidence includes the city council’s workshop agenda, transcript and video, the 4:00 p.m.

19 council agenda and meeting minutes (Rec. tab 3 exhibits 1-6), the verbatim minutes from the two Planning Commission meetings, Ms. Shorman’s GLUP appeal, legal opinions issued by the City Attorney regarding the appropriate standard of review in GLUP appeals to city council, and applicable City ordinances. Rec. tab 14 at pp. 187-258 (the exhibits to Indian Beach’s response to summary judgment are not tabbed in the mandamus record that the City provided to the Court). The trial court considered this evidence and all pleadings on file, and denied the City’s summary judgment motion on June 30, 2014—well before it issued the order that is the subject of this proceeding—necessarily finding that Indian Beach’s TOMA claim did not fail as a matter of law. See Rec. tab 18.

- The length of the closed session deliberation. According to the City, the council discussed the Shorman matter in closed session for 22 minutes. The sheer length of this discussion indicates the council discussed more than pure legal advice. See Gardner v. Herring, 21 S.W.3d 767, 771 (Tex. App.—Amarillo 2000, no pet.).

In Gardner, the court held that summary judgment dismissing a TOMA violation was not proper, as some evidence showed a quorum of the board talked outside of a public hearing “for about twenty minutes,” the subject at least partially concerned Gardner’s lawsuit against Herring individually, and one of the board members responded to the statement about the lawsuit. Id. Gardner held that, “given the time period which lapsed,” the subject of the lawsuit, the fact that a quorum of the board was present, the “potential affect of the suit upon the district’s official acts,” and the fact that some response to the lawsuit disclosure was made, one could reasonably infer that a verbal exchange about a matter of public business occurred. Id. The Gardner court noted its holding complied with the Texas Supreme Court’s explicit instruction to apply TOMA in an exacting and literal manner. Id. at 772 (citing Acker, 790 S.W.2d at 300).

Here, the length of the closed session discussion on the Shorman matter is especially important, because the City only urges a legal advice exception, and does not contend that a closed session was needed to discuss pending or threatened litigation, which could entail a more lengthy discussion of facts, pleadings, or allegations.

20 Instead, the City’s attorney made clear that the council members should discuss all factual questions during the public workshop (Rec. tab 3 exh.2 p.42-43), which indicates that any legal advice sought in closed session should be targeted—and short.

The subject matter of the closed session—purportedly seeking legal advice relating to the council’s standard of review—also begs the question why that issue must be addressed in closed session, especially where the City already possessed legal opinions as part of the public record that set out the City’s established standard. Rec. tab 14 pp.229-239; see also Rec. tab 3 exh. 2 p.41 (council member stating legal opinion actually answers her question).

- Comments during the workshop meeting. At the workshop meeting, one council member asked a question that prompted the city attorney to state that legal advice must be given in closed session. Rec. tab 3 exh.2 p.42-43. The question was whether the council could review Ms. Shorman’s GLUP appeal in the same way they would review a specific use permit. Id. During the workshop, the council was advised that it must review for an abuse of discretion. Rec. tab 3 exh.2 p.34 (“..what’s before you is standard of review. And I’m not sure if our city attorney wants to add anything here; but what you’re looking at is what is a use [sic] of discretion…”). That advice is consistent with written legal opinions from the City’s attorneys, which were provided to the during the workshop meeting. Rec. tab 14 pp.229-239. Considering the question posed during the workshop, the established standard of review, and the length of the closed deliberations, there is a clear indication that the conversation strayed into other topics such as general discussions of policy—and therefore improperly exceeded TOMA’s scope. See Tex. Atty. Gen. Op. JM-100 at 2 (1983); see also Rec. tab 1.

Therefore, even apart from the closed session recording, the trial court had ample

evidence on which to base his conclusion that the council exceeded its scope of

allowable discussion during closed session.

21 Even if this Court would have found differently from the trial court, the trial

court’s order cannot be overturned unless the City establishes Judge Ellisor could

only have reached one decision. Walker, 827 S.W.2d at 839; Diocese of Galveston-

Houston v. Stone, 892 S.W.2d 169, 174 (Tex. App.—Houston [14th Dist.] 1994,

orig. proceeding); GAF Corp., 839 S.W.2d at 150; see also In re La. Tex.

Healthcare Mgmt., L.L.C., 349 S.W.3d 688, 689 (Tex. App.—Houston [14th Dist.]

2011, orig. proceeding) (denying petition for writ of mandamus because trial

court’s implied finding supported order denying motion to disqualify counsel

“Because the record supports the trial court’s implied finding that relators waived

their right to seek disqualification, we deny the petition.”).

In Killam Ranch Properties, Ltd. v. Webb County, allegations were made

that the county improperly convened an executive session to negotiate the sale of

county property. Killam Ranch Properties, Ltd. v. Webb County, 376 S.W.3d 146,

157 (Tex. App.—San Antonio 2012, pet. denied) (en banc op. on reh.). Killam

appealed the denial of his summary judgment motion, in support of which he had

submitted the meeting minutes from the public meeting. Id. at 158. The minutes

indicated the executive session convened on issues related to sale of the property,

and was requested pursuant to TOMA’s attorney consultation and real estate

exceptions. Id. The Fourth Court of Appeals held Killam’s evidence raised a fact

issue on whether the privilege applies, as the county had alleged. Id. Killam

22 supports that the question of whether TOMA was exceeded in executive session is

a fact question for the court. See also Walker, 827 S.W.2d at 839; Diocese of

Galveston-Houston, 892 S.W.2d at 174.

In another mandamus case involving privilege, this Court refused to disturb

the trial court’s factual finding as to whether a party intended to waive the

attorney-client privilege through production. See In re Carbo Ceramics Inc., 81

S.W.3d 369, 376-77 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding).

The facts there showed that “the trial court could have determined, in her

discretion, that Carbo intended to waive its claim of attorney-client privilege….”

Id. Therefore, the court did not abuse its discretion in ordering production. Id.

Because the trial court’s order is supported by evidence, the trial court could

not have abused its discretion and mandamus must be denied.

4. The City’s characterizations of the recording’s contents should not be considered. The City argues that the trial court’s fact finding that the council improperly

engaged in a general discussion of policy unrelated to legal matters “is not the

case.” Br. at 18. This appears to attack the trial court’s determination of fact from

its review of the executive session recording. This is improper on mandamus. It

also appears to invite this Court to review the closed session audiotape and to

substitute its own judgment for the trial court’s—which is also improper in a

mandamus proceeding. Id.

23 Because Indian Beach has never had the opportunity to review the recording

of the closed session, it has no way to respond to the City’s characterization of the

contents of that recording. The City, at several places in its brief, states facts with

no citation that purportedly support its disagreement with the trial court’s findings

about the recording’s contents. For example, the City argues that the council

discussed a legal matter, and did not make a “final vote” in the closed meeting. See

Br. at 18. Throughout its brief—including at pages 5, 8, 9, 18, and 22—the City

makes conclusory statements that it “strictly complied” with TOMA by

deliberating or consulting with its attorney concerning the law. Indian Beach is

deprived of any ability to respond to these arguments because it has not reviewed

the closed session recording. Therefore, Indian Beach asks the Court not to

consider any of the City’s arguments about what the recording does, or does not,

include. See, e.g., Markowski, 940 S.W.2d at 725 (although appellate court did not

consider the executive session recording as evidence it did consider the trial court’s

finding about whether TOMA was exceeded since trial court reviewed the

recording).

Should the Court consider the City’s argument about the contents of the

recording, it is clear that any private discussion in the executive session that

strayed from legal advice is improper and unauthorized under TOMA. This is what

the trial court found in its order, which ample evidence supports..

24 D. Extraneous recordings are not sought.

Indian Beach asked the trial court to review the executive session recording

to determine whether the city council’s actions relating to the Shorman matter

exceeded TOMA’s scope. The trial court found the council did exceed TOMA’s

requirements relating to Shorman during closed session. Of course, Indian Beach

only seeks the portion of the closed session relevant to this litigation. If this Court

finds the trial court’s order would require disclosure of information not related to

the underlying case, the Court may instruct the trial court to reform its order to

require production of only the portions relevant to this case. See In Re Geico Gen.

Ins. Co., No. 14-06-00423-CV, 2006 WL 3511694, at *2 (Tex. App.—Houston

[14th Dist.] Dec. 7, 2006, orig. proceeding) (denying mandamus relief with respect

to the amount of fees awarded but conditionally granting mandamus in part to

direct trial court to reform its order and omit the requirement to pay fees within a

certain time period).

E. If the council strayed from its posted agenda topic, it violated TOMA’s notice requirements.

The City must give written notice of the date, hour, place and subject of each

meeting held by Council. TEX. GOV’T CODE § 551.041 (Vernon 2012). The notice

provided by the governmental body must be sufficiently specific to alert the

general public to the topics to be considered at the upcoming meeting. Cox Enter.,

706 S.W.2d at 959; City of Farmers Branch, 235 S.W.3d at 466-67.

25 No notice of executive session for the Shorman matter was posted. Rec. tab

3 exh. 1 pg. 25 & exh. 4 p.57. The council’s then-interim City Attorney stated at

the workshop meeting that Government Code Section 551.071 allows the mayor to

announce a closed session in order to receive legal advice “because this is a

properly posted agenda item.” Rec. tab 3 exh.2 p.42 (transcript of workshop

meeting). The notice of meeting for February 23rd’s workshop and 4:00 p.m.

meetings included this statement:

Public hearing and consider for action the appeal (12PA-10) of the City of Galveston Planning Commission’s failure to approve Planning Case Number I IP-137 relating to a request for a General Land Use Plan in conjunction with the development of a dog kennel in a Planned Development (PD) zoning district. Property is legally described as Abstract 121. Hall & Jones Survey. Tract 69-1, 4,000 Acres. in the City and County of Galveston. Texas, and more commonly known as 18601 Warrior Road. Appellant: Judy Shorman. Applicant and Property Owner: Judy Shorman.

Rec. tab 3 exh. 1 pg. 25 & exh. 4 p.57. The legal advice must pertain to the posted

agenda item—Ms. Shorman’s appeal. It may not delve into general procedures

concerning GLUP appellate standards of review, or into nonlegal topics such as

deciding not to follow established standards of review.

If the executive session discussions exceeded the legal advice exception (as

limited to the public notice for the Shorman matter), as the trial court found, then

TOMA’s notice requirements were also violated. For example, the City did not

publish any notice of an intent to hold a closed session to generally discuss or

26 modify the City’s policy on the city council’s standard for reviewing GLUP

applications, or to discuss City Ordinances dealing with the Planning

Commission’s discretion in GLUP applications, or whether the City’s policy

should be changed to remove the Planning Commission’s discretion in determining

GLUP applications.8

Whether proper notice was given is typically a fact issue. Tex. Atty. Gen.

Op. JC-0057 (1999), Tex. Atty. Gen. Op. DM-98 at 4 (1992). Notice can be

insufficient as a matter of law—for example, where no notice is provided at all, or

in the case of the Cox Enterprises, Inc. v. Board of Trustees, general statements

about “personnel” or “litigation” or “real estate matters” were too general to

provide adequate notice under TOMA that a topic was to be discussed in closed

session, “particularly where the subject slated for discussion was one of special

interest to the public.” Cox Enter., 706 S.W.2d at 959. Based upon the trial

court’s finding that the discussions at closed session exceeded the legal advice

exception, the meeting’s notice was insufficient.

Notably, at page 9, the City describes the closed discussion as pertaining to

the city council’s discretion to grant or deny Shorman’s permit application—this

8 Pursuant to Section 12 of Article II of the Charter of the City of Galveston “the Council shall legislate by ordinance only and the enacting clause of every ordinance shall be ‘Be It Ordained by the city council of the City of Galveston […]’. Every proposed ordinance shall be in writing and shall be read, either in full or by descriptive caption, in open meeting, before any vote is taken thereon, provided, however, that any proposed ordinance that is read by descriptive caption only shall be available for public inspection in the office of the City Secretary not less than seventy-two (72) hours prior to adoption […]”. See Appendix B.

27 description alone belies the improper scope of the executive session, since council

did not have before it a motion to grant or deny the permit application. Instead,

council was faced with (and noticed on the agenda) an appeal from the Planning

Commission’s action; it was asked to review the Planning Commission’s action

with respect to the requested GLUP application for abuse of discretion. Because

the city council violated TOMA’s notice provisions, the extraneous executive

session discussions should not have occurred, and trial court could not have abused

its discretion. Mandamus should be denied.

CONCLUSION AND PRAYER

The trial court properly found that Galveston’s city council exceeded its

statutory authority to meet in closed session. With that finding in mind, the court

properly ordered the City to produce the executive session recording. Indian Beach

therefore prays this Court deny the City’s request for mandamus relief. In the

alternative, mandamus may be conditionally granted only in part to allow the trial

court to reform its order to expressly omit production of any portion of the

recording that does not relate to the Shorman matter, as Indian Beach only seeks

closed session deliberations that relate to the underlying proceeding. Indian Beach

respectfully requests all other relief to which it is entitled, whether at equity or law.

28 Respectfully submitted,

By: /s/ Angie Olalde Andrew J. Mytelka State Bar No. 14767700 Stephen G. Schulz State Bar No. 17848300Angie Olalde State Bar No. 24049015 GREER, HERZ & ADAMS, L.L.P. 2525 South Shore Blvd., Ste. 203 League City, Texas 77573 (409) 797-3200 (Telephone) (281) 538-3791 (Facsimile)

COUNSEL FOR INDIAN BEACH PROPERTY OWNERS’ ASSOCIATION, INC.

29 CERTIFICATION

I hereby certify that I have reviewed this Response, and I conclude that

every factual statement therein is supported by competent evidence included in the

appendix or record.

/s/ Angie Olalde

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4, I certify that there are 7,094 words in this document, excepting those portions of the brief listed in Rule 9.4(i)(1), as calculated by the word count feature of Microsoft Word 2010, which was used to prepare this document.

30 CERTIFICATE OF SERVICE

I certify that a copy of the foregoing document was served pursuant to Texas Rule of Appellate Procedure 9.5 on the 9th day of January, 2015 upon the following counsel of record:

John J. Hightower Via Electronic Service and via e-mail Scott Bounds Eric C. Farrar OLSON & OLSON, L.L.P. Wortham Tower, Suite 600 2727 Allen parkway Houston, Texas 77019

Counsel for Relators

Robert Shattuck, Jr. Via electronic service & e-mail to rvshattuck@aol.com rd 1018 23 Street Galveston, Texas 77550

Attorney for Judy Shorman

Honorable John Ellisor Via CMRRR 122nd Judicial District Court 600 59th Street, Room 4304 Galveston, Texas 77551

/s/ Angie Olalde Angie Olalde

31 No. 14-14-01005-CV

In the Fourteenth Court of Appeals Houston, Texas

CITY OF GALVESTON, Relator

INDIAN BEACH PROPERTY OWNERS’ ASSOCIATION, INC., Real Party in Interest

Original Proceeding on Petition for Writ of Mandamus from the 122nd Judicial District Court Galveston County, Texas

APPENDIX TO RESPONSE TO PETITION FOR WRIT OF MANDAMUS

Appendix A Portions of Section 29-40 of the City of Galveston Zoning Standards (1991), including Ordinances 93-33, 98-52, and 08-021

Appendix B Article II, Section 12 of the Charter of the City of Galveston

1 APPENDIX A ORDINANCE NO. 93-33 AN ORDINANCE OF THE CITY OF GALVESTON, TEXAS, AMENDING CHAPTER 29, "PLA!'WING AND DEVELOPMENT" OF THE CODE OF THE CITY OF GALVESTON, 1982, AS AMENDED, BY AMENDING 'IHE ZONING STANDARDS, 1991, TO ALLOW THE PLANNING COMMISSION TO MAKE FINAL DETERMINATION ON GENERAL LAND USE PLANS; PROVIDING FOR A PENALTY CLAUSE; MAKING VARIOUS FINDINGS AND PROVISIONS RELATED TO THE SUBJECT.

WHEREAS, the Committee on Efficiency and Economic Development asked city staff to review ordinances that may be amended to remove unnecessary difficulties, obstacles or delays from the permitting and board review process: and WHEREAS, the Department of Planning and Transportation and the Planning Commission have considered and recommended amendment of the zoning ordinance to provide that the Planning Commission shall have authority to approve, approve with conditions or modifications or deny a Specific Use Permit or a General Land Use Plan; and WHEREAS, the City Council of the City of Galveston has found that it would be beneficial to grant the Planning Commission the power to make final determination on General Land Use Plans; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GALVESTON, TEXAS: SECTION 1; The findipgs and recitations set out in th6 preamble to this Ordinance are found to be true and correct and they are hereby adopted by the City Council and made a part hereof for all purposes. SECTION 2. That Section 29·<\0(b) 1 (o) and (d) of the Zoning Standards 1991 of the Code of the City of Galveston, 1982, as amended, be and are hereby amended to read as follows: "Section 29-40: PD, PLANNED DEVELOPMENT DISTRICT (b) Any proposed use in the Planned Development District (PD) shall be based upon a General Land Use Plan approved by the Planning Commission. (c) There will be a public hearing held by the Planning Commission for the purpose of considering such proposed General Land Use Plan. Notice of such hearing shall be published at least ten (10) days prior to the hearing before the Planning Commission and notices mailed to all parties affected within 200 feet of the site. 443

SECTION 4. That it is hereby declared to be the intention of the City Council that the sections 1 paragraphs 1 sentences/ clauses and phrases of this Ordinance are severable and 1 if any phrase/ clause/ sentence/ paragraph or section of this Ordinance should be declared invalid by the final judgment or decree of any court of competent jurisdiction/ such invalidity shall not affect any of the remainingphrases 1 clauses 1 sentences/ paragraphs and sections of this Ordinance 1 since the same would have been enacted by the city council without the incorporation in this Ordinance of any such invalid phrase 1 clause 1 sentence 1 paragraph or section in conflict herewith are repealed to the extent of such conflict only. SECTION 5. That all Ordinances or parts thereof in conflict herewith are repealed to the extent of such conflict only. SECTION 6. That in accordance with the provisions of Sections 12 and 13 of Article l l of the City Charter this Ordinance has been publicly available in the office of the City S.$or

Secretary for the~11 ·of tine City of Galveston 1 Texas 86 ORDINANCE NO. 98-52

AN ORDINANCE OF THE CITY OF GALVESTON, TEXAS, AMENDING SECTION 29-40, SUBSECTION (b), PLANNED DEVELOPMENT DISTRICT OF THE "ZONING REGULATIONS 1991", TO STATE THAT ALL GENERAL LAND USE PLANS SHALL INCLUDE A DETAILED SITE PLAN APPROVED BY THE PLANNING COMMISSION; PLANNING CASE 98P-95; MAKING VARIOUS FINDINGS AND PROVISIONS RELATED TO THE SUBJECT.

WHEREAS, the "Zoning Regulations 1991 ", Section 29-40 requires an approved General Land Use Plan from the Planning Commission for all development within a Planned Development Zoning District; and

WHEREAS, the "Zoning Regulations 1991", Section29-40 does not specify the details that should be included on the required general land use plan; and

WHEREAS, the proposed code change will require all General Land Use plans to include the requirements addressed in Section 29-88 (g)(2), Site Plan Approval, of the Zoning Regulations ]991; and

WHEREAS, due to past confusion regarding the requirements to be included on a general land use plan, the Department of Planning and Transportation recommends amendment of Section 29-40 to include a detailed site plan approved by the Phmning Commission; and

WHEREAS, at its meeting of July 7, 1998, the Galveston Planning Commission voted to recommend approval of Planning Case 98P-95; and

WHEREAS, the City Council deems it in the public's interest to clarifY the details that · should be included on the general land use plan by requiring a detailed site plan approved by the Planning Commission; -.......~

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GALVESTON, TEXAS;

SECTION 1. The fmdings and recitations set out in the preamble to this Ordinance are found to be true and correct and they are hereby adopted by the City Council and made a part hereoffor all purposes.

SECTION 2. Section 2940(b), "PD, Planned Development District" of +'The Zoning Standards 1991 '' is hereby amended to read and provide as follows:

"(b) Any proposed use in the Planned Dewlopment Zoning District shall be based upon a General Land Use Plan, which shall include a detailed site plan pursuant to Section 29-8 8 (g)(2) of the "Zoning Standards 1991, as amended", and approved by the Planning Commission."

SECTION 3, It is hereby declared to be the intention of the City Council that the 1 ••• ~- -1-·~-~- --.J _t,._.,.,._.,.. ..-~f.\..; .. f"'l ... ..l~ .............. ,.. nyoA <"f~"Cfj:Oio~)...l,a, l.llt'lrl ~f' Dn1./ 87 SECfiON 5. In accordance with the provisions of Sections 12 and 13 of Article II of the City Charter this Ordinance has been publicly available in the office of the City Secret:&rY for not less than 72 hours prior to its adoption; that this Ordinance may be read and published by descriptive caption only.

SECflON 6. This Ordinance shall be and become effective from and after its adoption and publication in accordance with the provisions of the Charter of the City of Galveston.

- 1998. APPROVED by the City Council at its regular meeting held on the 9th day of July,

-~·- ~ .... Secretary for the City Council of the City of Galveston, Texas

- ORDINANCE NO. 08-021

AN ORDrNANCE OF THE CITY OF GALVESTON, TEXAS AMENDING THE GALVESTON ZONrNG STANDARDS, SECTION 29-88: "SITE PLAN APPROVAL,'' REGARDING DEVELOPMENT SUBMITTAL REQUtREMENTS AND REVIEW PROCESSES~ PLANNING CASE NUMBER 08P-J5; MAK.ING VARIOUS FlND!NGS AND PROVISIONS RELATED TO THE SUBJECT

-----·······--·------ -·"···-·-····----·~--------:-·-·-·--·--~---~-

WHEREAS. the Clty of Galveston Zoning Stam4m!s, Section 29-88 "Site Plan Approval" indicates stamlards to ''review, approve, approve with conditions, or disapprove <.kvdopntent propo~als." ln addition, to the rec(nnmendations of standards tbr ruview of projects located within the Height and Density Development Zone. Staff has idenritied sMions of the current regulations that need tll be moditkd to rd1ect the existing administrative processes us identitied in "F:xhibit At' whiCh is incorporated lor aJI purposes. The. proposed process tbr review incorporates both an administn>ti ve review process by City Staff and a public notice and comment process for larger scale proj~cts by th~ Planning Commission; and.

WHEREAS, the proposed amendments confom1 to the goals of the Comprehensive Plan by improving the application roview process und providing infonnation in an expeditiO>lS manner. The process will provide approvals for all development that conforms to Section 29-107, "Height und Density Dewlopment Zontl.'' \\Swell as all other tlpplicable codes, standards. and the Comprehensive Plan; and,

WHEREAS, the Planning CL1mm!ssion. at a special meeting on April 15, 2008 recommended appmval of Planning Case OSP-35 with certain changes and,

WHEREAS, the City Council alter public notice and hearing finds it in the. public lnter~st to ttpprvvc Planning Case OSP-35

NOW. THEREFORE. BE lT ORDAfNED BY THE CITY COlJNCfL OF THE CITY OF GALVESTON, TEXAS:

SEC'I'JON I. Thl) findings and recitations set <>Ill in the preamble t(l this On.lin~nce ure tbund lo b~ IJ\1~ nnd corr~'Ct and they ~re h~r~by udopt<:d by the City C\1uncil and made a part hereof t'or ~ ll purpooes.

~ECTJON 2. The• Galveston !.oning St~mdi!rds, s~ction 29-88: "Siw Plan Approval"i~ lh~rehy amended to r~ad 1md provide a~ follow:;:

Se~tilln 29·88; SITE PLAN APPROV.·\L No Building Pennit shall be issued for the c-onstruction, er\lction or alterathm l,)f a structure or building in any zoning district where. site. plan approval is required by this Code until said site plan has heen submitted and approved by the Department of Planning and Community Development or by whatever it may be known and until all fees have been paid, including bnt not limited to, fees r\:quired by section 29-2!2. (a) PU!vose To provide a prot:ess by which the staff of the Department of Plarming and C(Jmmunity Development _llnd the Planning Comm\§~)on will review, app~ove. approve with conditions, or disapprove development proposals: provide zonlng and land t1se d~temlination ktters liS required and provide letters of encroactunent. (b) Intent To facilitate the pe1mit process for the construction. ere~:tion or altel'ation of u ~tructure or building in any ;r.oning district where the review by the staff of the Department of Plruming ru1d Community Development is required. Such review shall include a detennination of the project's impact on adjoining properties, traffi(), noise, use intensity, und on and off street parking; the project's application of design guidelines, exis-ting neighborhood plans, or comprehensive plan; the project's relationship to he::altl1, safety, morals, or general welfare of the public; and lhe project's efforts to protect l\lld preserve l1istorical, cultuml and environmental plac-es (tnd areas. To provide the pltbclic 1\-ith dticient respon~es relating to the City of Galveston Zoning Standards and Zoning Districts. (c) The following requires Site Plan Approval by the Department of Planning and Communit>' DevelopmenT: (1) B.eac-hfront Construction Certi.ficate and Dune Protection Permit 50-feet north of dune prot~'Ction line; (2) Dune protectior1 pem1it application; (3) License to (.lg~- Non-Pennanent: and, t4J Design approvals within Historic District. (d) The following requires Department of Pl~1nning and Community Development stnff actilJil: (J) Zoning letter ,~.:..JL~usic ldter for zoqjpg classjtkation.itn.\l.liJ!l_q .\1~..illlb:; (2) btmEI-llttifa~~lioo ZlllUlli.LLd:\<;'£.~,;_.Jl detuillil~lli

(e) Commercial Development includes th~ following: (I) Commercial D.:vel.opmcrit (new construction) (2) Commercial Expansion (rehabilitation or c.xpansion) (J) Jv1ultiflunily Pevelopm~nt (more than four units) (f) llle Jbllowing items are exempt from Site Plan Approval fees: (1) Single Famlly residential development within all zoning districts cxce.pt wnere subsection (b) or (c) above may apply; and, (2) Single family d\Welopmcnt that comp'!ies with Section ::?.9-110, "Creation of a building site,'' if applicnb!e. (g) Procedure (I) An applicant may ~ubmit an application for site plan approval at the same time an (IJJplication for a Builuing Permit is submitted, or rhe applicant may submit the application for gife plan !tpprova! before submitting lll1 application tbr a Building Pennit. (2) The applictmt for site plan approv!ll :>hall submit the following inform

g. Provision for drainage of surl~~ce water. h. Prnjt:ctcd trips and parking demand. i. Adjnce11t structure~

(2) Vddcular unJ ped~:mtrian lngrc.>s ~md ~gress provkles for 1h~ ..:I'J·1cknt and ~afe movt·rn~nt of t:mffk LU'ld p~ople. (3) Suffkient landscaping und scre.,>ning exists so that the proposed development will be in hamwny with and shall. not be harmful to adjacent properties. (4) llle property is adequarely and propel·ly drained. (5) Hours of operation will ntH affect adjacent residential development. (6) All proposed signs must be in harmony with adjacent dcvelopmt.~nt and may not be in tJXcess of actual need. (7) Uses that may be classified as Commercinl Otitdoor Amusement facilities require a public announcement and written notice to the owners and occupants of real propilrty within ttu·ec hundred feet (JOO') of Uie property on which the use ts proposed. Witllin t~n days of the onnouncement und mltit\cation ~ny owner or occupant 11f property within the City may request that the matter be presented to the Planning Commission for approval. (i) Elmroipg Commission Review of Planned Development IP.Qll~l.i.Q.n 29-40: (1) In accotdancc with ..,llection 29-40: Planned Deve!Qpill£:!.1! District, ony proposed use .in..JI],Q.J?.[®.JJ£d Development (PO) Z:onhg .District shall be based upon a Ge.neral Land Use Plmb which shall include n detailed si.t12..11lan Jlli.rsuant to Section 29-88 Ul.lll1 (2) J:!w'~.l:Yill be a Public Hearing lwld ~Y.!.~J£..!:!.\l.!ltJi.!.lg Commission .fu.!:....\.!JQJmmose of considering such pt0.12Qfled Genera.! Land 1.!§.~ Plan, as (kscribed in Section 29-40. (j) Planning Com.misslon R~iew of Height und Density Development Zone CH!2QZl Scction2~:) 07: (I) lu accordtmce with Section 29-107: Height. ond Qensity J)ovelopment Zoll4.J.Li'ler nq_tice and hearing, the Planning .Commission sh.,...l\r£.J.!.. d£!llwined by r<;.$1J.I!..!J.$YLJW.O.L_.applicable .. _ City DeJb1£!!!1£!JlLJ!.\!!io.g wm!i cat.i.Q.!l1)9li.t;.~_Jl[.Q.!;.'m,, (2) I.he Planning Commission shall not approve the prqposed projeQt i.fi.UJoes Jl\lt£QI!ll?lY \Vith the it£!J!S !iste_9..lJ.l_,'i\;,£A9l!.L!J above, fh-l ..(kl Appeal h1 the event the applicant lor ·a Building Permit does not agree with tile decision of the Department of Planning and Community Dewlopment, o.r by whatev~:r it may be known, the matter m<~Y be pr~sented to the Pla1U1ing Conm1ission. with appeal to the City Cmmcil, The Cou11cil's decision shall be fillal.

SECTION 3. It is hereby uedared to be the intention of the. City Council that the sections, paragraphs, sentences, clrt\Jses and phrases of this Ordin.'mce are severable an~, if any phras~. clause, ~entencc, paragraph, or section of this Ordinance should be declared invalld by the final judgment or decree of any coult of ''ompeteut jurisdiction, such invalidity shall not affect any of the r~maining phrases, clauses, sentence, paragraphs and sections of this Ordinance.

SECTION 4, All Ordinances or parts tlwrcof in contlict herewith are r1;1pealed to the extent of scuch contlict only.

SECTION 5, In accordance with the provisions of Section J 2 and 13 of Article 11 of the City Charter this Ordinance has been publicly av~ilable in tbe otrlce of th~ City SecNtmy for not kss than 72 hours prior to its adoption; that this Ordinance may be ti,Jfld and published by descriptive caption only. SECTION 6. This Ordimu1'e shall be and bucom~ em~clive Cron1 and after its adoption and publication in accordunce with the provisions of th~ Ch,mer of th~ City nf · Gulv~~tnn.

I. Bmb11ra S. Lawrence, Secretary of the City Council of the City of Galveston. do hereby certlt'y that tbe foregoing is a true and correct copy of till Ordinance t1doptt!d by tit<: City Council of the City M Galveston ~~ a regular meeting held on the 24 1h day of ,\pril, ::wos. \IS the same app.:urs in the r~cnrds of this ot'tice.

J"-J TESTIMONY WHERF!OF. I subscribe my uame her~:to ottkinlly und~r the ..:orpomte seal of the City of 0<11v~ston this~ day of }Z~u.,,C,_,. __ . 2 .lc~?_%_. ,!"'· "-.:::;.7 ./ , ; •..,.::! ,}~~~.~­ Secretary for the City Council of the City of Oatwsi1m 451 ORDINANCENO. 98-16

AN ORDINANCE OF THE CITY OF GALVESTON~ TEXAS, AMENDING THE ZONING REGULATIONS 1991" OF "THE CODE OF THE CITY OF GALVESTON 1982~ AS AMENDED" BY PROVIDING FOR APPEALS OF GENERAL LAND USE PLANS TO Cfl'Y COUNCIL; PLANNING CASE 98P-40; PROVIDING FOR FINDINGS OF FACT AND PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, the "Zoning Regulations 1991" requires individuals who wish to develop within a Plmmed Development Zoning district to obtain the Galveston Planning Co-q:unission's approval of a General Land Use Plan; and

WHEREAS, the "Zoning Regulations 1991" do not provide a mem1s whereby a11 aggrieved party may appeal the Platming Comrnission' s decision regarding a general land use plan; and

WHEREAS, the City Council deems it in the public's interest to provide a means whereby persons aggrieved by the denial or approval of a general land use plan may appeal to the City Council; and

WHEREAs, on March 3, 1998, the Planning Com1nissionvoted to reconuneud approval of Case 98P-40;

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CffY OF GALVESTON, TEXAS:

SECTION 1. The findings and recitations set out in the prea:tnble to this Ordinance are found to be true and cou-ect and they are hereby adopted by the City Council and made a part hereof for all purposes.

SECTION 2. Section 29-40, "PD, Planned Development District" of ''The Zoning Standards 1991" of "the Code of the City of Galveston 1982, as atnended" is here by amended by adopting a new sub-section {f) to read and provide as ib ll ows:

"(f) Appeal-- General Laud Use Plan.

Any person aggrieved by the Planning Commission's approval or disapproval of a general land use plan in the Planned Development District may file an appeal to the City Council. Such appeal must be filed with the Department of Planning and Transportation no Iater than ten (1 0) working days from the date of the Platming Commission's decision, The City Council may uphold or reverse the decision of the Planning Commission in which event, the City Council's decision shall be final. In addition, the City Council may refer the matter back to the Planning Cmmnission with specific instructions to considerne\v information. In such event. the Planning Cmiunission shall reconsider 452

SECfiON 4 All Ordinances or parts thereof in conflict herewith are repealed to the extent of such conflict only.

SECTION 5. In accordance with the provisions of Section 12 and 13 of Article II of the City Charter this Ordinance has been publicly available in the office of the City Secretary for not less than 72 hours prior to its adoption; that 1his ordinance may be read and published by descriptive caption only.

SECTION 6. This Ordinance shall be and become effective from and after its adoption and publication in accordance with the provisions of the Charter of the City of Galveston, Texas.

"*****************"*******"****** Approved by the City Cotmcil at its regular meeting held on the 26th day of March, 1998.

ecretarv for the Citv Com1eil of the City of Galveston, Texas

I APPENDIX B ARTICLE II. ‐ THE COUNCIL

Section 12. Procedure to Enact Legislation. The Council shall legislate by ordinance only, and the enacting clause of every ordinance shall be "Be it Ordained by the City Council of the City of Galveston." All ordinances shall be submitted to the City Attorney for the City Attorney's approval before adoption and unless approved by the City Attorney, in writing, the City Attorney shall file with the City Secretary the City Attorney's written legal objections thereto. Every proposed ordinance shall be in writing and shall be read, either in full or by descriptive caption, in open meeting before any vote is taken thereon, provided, however, that any proposed ordinance that is read by descriptive caption only shall be available for public inspection in the office of the City Secretary not less than seventy-two (72) hours prior to adoption. All ordinances, unless otherwise provided by law or this Charter or by the terms of such ordinance, shall take effect immediately upon the final passage thereof.

(Ord. No. 77-25, § 3, 4-4-77; Ord. No. 91-95, § 4(3), 11-14-91; Ord. No. 96-59, § 5, 6-16-96)