TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00393-CV
Margot Spiller, Charles Sobeck, Kofi Amesawu, Delton W. Behrens, James D. Bettis,
Reba Bhattacharjee, Kim D. Bremer, Charles Bryson, Robert L. Cherry,
Tom Cheshire, James W. Fisher, Charles Fougerat, Cheryl Franklin,
John L. Griffin, William W. Hamby, Renee Jones, Janis Kemp,
Freddie Maxwell, Lane Moore, Walter Muehlhause,
George Neher, Ruel D. Norman, Janice K. Roling,
Philip Samuelson, Mary Serrano,
Greg Smith, Charles Spinn, and
Lynn Vaughan, Appellants
v.
Texas Department of Insurance, Georgia Flint, Elizabeth Throgmorton,
Allene D. Evans, Richard E. Reynolds, and Claire Korioth, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. 92-13036-A, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
Employees fired by the Texas Department of Insurance appeal the trial court's resolution
of the parties' cross-motions for summary judgment. At trial, appellants challenged the reduction in force
on several fronts; the issue relevant to this appeal is their contention that the reduction was void because
the State Board of Insurance, the Department's supervisory body, approved it in an illegally closed
meeting. Appellants raise nine points of error. Eight are variations on the theme that the trial court, though
correctly finding a violation of the Open Meetings Act, erred by concluding that the reduction in force was
not void; by the ninth, appellants contend that the court should have awarded them attorney's fees for
proving the Open Meetings Act violations. We will affirm the trial court's judgment.
BACKGROUND
Under the statute in effect at the time of the reduction, the State Board of Insurance was
the policy-making body in charge of the Department of Insurance. Act of June 6, 1991, 72d Leg., R.S.,
ch. 242, § 1.02, 1991 Tex. Gen. Laws 939, 941 ("Old Ins. Code" art. 1.04(b)). The Board was required
to act through the commissioner, whom it appointed to act as the chief executive and administrative officer
of the Department; the commissioner served at the Board's pleasure. Old Ins. Code art. 1.09(a). The
commissioner was charged with appointing deputies, assistants, and other personnel necessary to carry out
the duties and functions devolving upon the commissioner and the department. Old Ins. Code art. 1.09(f).
In 1991, the Board--Claire Korioth, Richard Reynolds, and Allene Evans--decided to
increase its participation and "team manage" the agency along with the commissioner. The Board believed
the Department needed a reduction in force, and was concerned that Philip Barnes, Commissioner Georgia
Flint's predecessor, had not proceeded apace with the reduction. Barnes left the Department in November
1991. In closed sessions in December 1991 and January 1992, the Board heard presentations on
proposed reductions in force. Topics discussed at the January meeting included Flint's contacts with
various state officials about the reduction, the need to ensure that the standing of various minorities had been
considered in implementing the reduction, and plans for security to implement the reduction.
Flint and Elizabeth Throgmorton, the Department's human resources director, said that the
Board approved the reduction at the January 1992 meeting. The reduction-related terminations occurred
without opportunity for hearing despite the Board's written policies for reductions. Floyd Bermea, a human
resources employee, testified that the Board would not need to approve the procedures of the reduction.
Korioth said that Flint told them of the impending firing of more than ninety (unnamed) employees. Korioth
assented to the reduction and said she heard no objection from any Board member. She agreed that the
purpose of the January session was to let the Board raise any questions or objections to the
commissioner's plan.
Six days after the January meeting, appellants and sixty others were fired and asked to
leave the office immediately under armed escort. Appellants filed suit with several different claims that have
followed a complex route through the federal and state court systems. Appellants sought summary
judgment, in part, that the reduction be declared void, that evidence of its existence be expunged from their
employment records, and that they be awarded back pay, benefits, and attorney's fees.
The trial court found that the Board violated the Open Meetings Act at the December and
January meetings by posting a generic, overly broad, and imprecise notice of the subject of the meetings;
discussing personnel matters in a way not excepted from the Act; and failing to keep tape recording or
certified agenda. The court nevertheless held that the reduction was not an action taken by the Board at
either of the improper meetings because the reduction properly fell within the authority of the insurance
commissioner, not the Board. The court denied appellants' motion for summary judgment and granted the
appellees' motion, holding that the reduction was valid regardless of the validity of the Board's actions.
DISCUSSION
Appellants' first eight points assert variations on the theme that the trial court erred by
awarding judgment to the appellees and not to the appellants. (1) We review the summary judgment evidence
to determine whether the movant established the absence of a genuine issue of material fact and entitlement
to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678 (Tex.1979). We view the evidence and its reasonable inferences in the light
most favorable to the nonmovant and resolve all doubts about the existence of a genuine issue of a material
fact against the movant. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391
S.W.2d 41, 47 (Tex.1965). We review cross-motions for summary judgment under this standard and may
reverse the trial court judgment and render such judgment as the trial court should have rendered, including
rendering judgment for the other movant. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988).
Because appellees raise no cross-points of error against the trial court's conclusion that the
Board violated the Open Meetings Act, we will not disturb those holdings. (2) Actions taken in violation of
the Act are voidable. Tex. Gov't Code Ann. § 151.141 (West 1994). We must determine whether the
voidable actions of the Board rendered otherwise valid actions by the commissioner void.
We hold as a matter of law that the commissioner had the independent power to firethe
employees. The insurance code gave the commissioner authority to hire employees as necessary to carry
out the duties and functions of the department. Old Ins. Code art. 1.09(f). The commissioner also was
charged with monitoring their performance. Old Ins. Code art. 1.09(h). A reasonable implication of the
power to hire necessary employees is the power to fire them when they are not necessary. Former
commissioner Barnes stated at his deposition that he would not have sought Board approval for the
reduction in force, though he probably would have informed them of its imminence. He said he would hope
for their concurrence, but would have considered proceeding even in the face of their direction not to
undertake the reduction. He considered the reduction one of the decisions that the Board had a right to
be informed of but not to decide. There was no evidence that contradicted his interpretation of the statute.
The commissioner's independent power to fire appellants makes the validity of the Board's
approval irrelevant to the validity of the reduction. Appellants cite us to no case in which an executive's
independently authorized action was invalidated by a concurrent but superfluous approval or authorization
by a governmental body. See Stockdale v. Meno, 867 S.W.2d 123, 124 (Tex. App.--Austin 1993, writ
denied) (school board adopted superintendent's recommendation that teacher be fired); Common Cause
v. Metropolitan Transit Auth., 666 S.W.2d 610, 611 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd
n.r.e.) (governmental body authorized executive officer to enter contract); Aguilar v. City of El Paso, 594
S.W.2d 191, 194 (Tex. Civ. App.--El Paso 1980, writ ref'd n.r.e.) (governmental body recommended
executive officer enter contract). In none of these cases was there a showing that the governing body's
approval was unnecessary; rather, for example, the school board in Stockdale was statutorily required to
decide whether to renew the teacher's term contract. See Tex. Educ. Code Ann. §§ 21.206-21.208
(West 1996). Here, however, the record reflects that the commissioner could unilaterally fire the
employees. Thus, even if we declared void the Board's approval of the reduction, the commissioner's
action would stand on its own.
Appellants argue that we should nevertheless invalidate the commissioner's action. They
correctly contend that the evidence shows that the Board met behind closed doors to consider an action
and yet did not vote in an open meeting regarding their closed-door discussions. They contend that this
is precisely the sort of activity the legislature sought to eradicate by enacting the Open Meetings Act. See
Acker v. Texas Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990). They contend that, because the
Board could have ordered the commissioner to conduct the reduction (and, in a sense, did by approving
the action), the commissioner's action is invalid. The problem for appellants, again, is the commissioner's
independent power. The commissioner could have fired appellants without first briefing the Board. We
find no basis to conclude that Flint's informing the Board and obtaining their approval somehow stripped
her of her power to fire appellants.
We hold that the trial court correctly found as a matter of law that the commissioner
independently had the power to order the reduction in force. We accordingly hold that the trial court did
not err by refusing to declare the reduction void despite finding that the Board violated the Open Meetings
Act. We find no genuine issues of material fact on these issues. We conclude that the trial court correctly
granted the appellees' motion for summary judgment and overruled the appellants' motion for summary
judgment. We overrule points of error one through eight.
By their ninth point of error, the appellants contend that the court erred by refusing to
award them attorney's fees. The statute states that "the court may assess costs of litigation and reasonable
attorney's fees incurred by a plaintiff or defendant who substantially prevails in an action" brought to stop,
prevent or reverse a violation of the Open Meetings Act. Tex. Gov't Code Ann. § 551.142 (West 1994)
(emphasis added). This language does not entitle the appellants to attorney fees, but merely allows the
court to award them. The decision to grant or deny attorney's fees and costs is within the trial court's sound
discretion. See Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)
(interpreting declaratory judgment act section (Tex. Civ. Prac. & Rem. Code § 37.009) allowing imposition
of fees). We will not reverse absent an abuse of discretion. The trial court may have decided that the
appellants did not substantially prevail because, despite proving violations of the Open Meetings Act, they
did not obtain the declaration that the reduction was void. Though the court might have awarded fees, we
conclude it did not abuse its discretion by declining to award fees. We overrule point nine.
We affirm the judgment.
Marilyn Aboussie, Justice
Before Justices Aboussie, Kidd and B. A. Smith
Affirmed
Filed: July 24, 1997
Publish
1. By their first point, appellants assert that the court erred by not granting appellants declaratory relief
that the reduction was void and reinstatement, back wages, benefits, and attorney's fees. By their other
points, in numerical order, they assert that the court erred by granting summary judgment to appellees
because (2) the reduction was void because it was based on Board actions or decisions about the reduction
made in violation of the Open Meetings Act; (3) genuine issues of material fact exist as to whether the
Board took action or made decisions about the reduction; (4) the Board's authority to approve the
reduction rendered the reduction void; (5) the Board's authority to direct the commissioner to undertake
the reduction rendered the reduction void; (6) the Board's deliberation with the commissioner on the
reduction rendered the reduction void; (7) the reduction was void because it was undertaken in furtherance
of deliberations held in violation of the Open Meetings Act; and (8) there was a genuine issue of material
fact as to whether the reduction was in furtherance of the Board's deliberations.
2. We expressly are not making our own finding of violations upon review of the record.
unnecessary; rather, for example, the school board in Stockdale was statutorily required to
decide whether to renew the teacher's term contract. See Tex. Educ. Code Ann. §§ 21.206-21.208
(West 1996). Here, however, the record reflects that the commissioner could unilaterally fire the
employees. Thus, even if we declared void the Board's approval of the reduction, the commissioner's
action would stand on its own.
Appellants argue that we should nevertheless invalidate the commissioner's action. They
correctly contend that the evidence shows that the Board met behind closed doors to consider an action
and yet did not vote in an open meeting regarding their closed-door discussions. They contend that this
is precisely the sort of activity the legislature sought to eradicate by enacting the Open Meetings Act. See
Acker v. Texas Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990). They contend that, because the
Board could have ordered the commissioner to conduct the reduction (and, in a sense, did by approving
the action), the commissioner's action is invalid. The problem for appellants, again, is the commissioner's
independent power. The commissioner could have fired appellants without first briefing the Board. We
find no basis to conclude that Flint's informing the Board and obtaining their approval somehow stripped
her of her power to fire appellants.
We hold that the trial court correctly found as a matter of law that the commissioner
independently had the power to order the reduction in force. We accordingly hold that the trial court did
not err by refusing to declare the reduction void despite finding that the Board violated the Open Meetings
Act. We find no genuine issues of material fact on these issues. We conclude that the trial court correctly
granted the appellees' motion for summary judgment and overruled the appellants' motion for summary
judgment. We overrule points of error one through eight.
By their ninth point of error, the appellants contend that the court erred by refusing to
award them attorney's fees. The statute states that "the court may assess costs of litigation and reasonable
attorney's fees incurred by a plaintiff or defendant who substantially prevails in an action" brought to stop,
prevent or reverse a violation of the Open Meetings Act. Tex. Gov't Code Ann. § 551.142 (West 1994)
(emphasis added). This language does not entitle the appellants to attorney fees, but merely allows the
court to award them. The decision to grant or deny attorney's fees and costs is within the trial court's sound
discretion. See Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)
(interpreting declaratory judgment act section (Tex. Civ. Prac. & Rem. Code § 37.009) allowing imposition
of fees). We will not reverse absent an abuse of discretion. The trial court may have decided that the
appellants did not substantially prevail because, despite proving violations of the Open Meetings Act, they
did not obtain the declaration that the reduction was void. Though the court might have awarded fees, we
conclude it did not abuse its discretion by declining to award fees. We overrule point nine.
1. By their first point, appellants assert that the court erred by not granting appellants declaratory relief
that the reduction was void and reinstatement, back wages, benefits, and attorney's fees. By their other
points, in numerical order, they assert that the court erred by granting summary judgment to appellees
because (2) the reduction was void because it was based on Board actions or decisions about the reduction
made in violation of the Open Meetings Act; (3) genuine issues of material fact exist as to whether the
Board took action or made decisions about the reduction; (4) the Board's authority to approve the
reduction rendered the reduction void; (5) the Board's authority to direct the commissioner to undertake
the reduction rendered the reduction void; (6) the Board's deliberation with the commissioner on the
reduction rendered th