Martinez v. State

879 S.W.2d 54, 1994 Tex. Crim. App. LEXIS 72, 1993 WL 664215

Opinions

OPINION ON APPELLANTS’ PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellants, Jimmy Martinez and Robert Walk, are Bee County Commissioners. They were charged by information with the misdemeanor offense of violating Tex.Rev.Civ.Stat. art. 6252-17 (Vernon Supp.1991),¹ generally known as the Open Meetings Act (hereinafter “Act”). The trial judge quashed the in-formations due to the State’s failure to plead certain exceptions that would have permitted a closed meeting under the Act. The Corpus Christi Court of Appeals reversed the judgment of the trial court by holding that the informations adequately pleaded and negated all of the exceptions to the Act and, therefore, properly alleged the offense. State v. Martinez, 829 S.W.2d 365, 368 (Tex.App.—Corpus Christi 1992). We affirm the judgment of the Court of Appeals on other grounds, as set forth below.

I.

Section 2 of the Act provides: “Except as otherwise provided in this Act or specifically permitted in the Constitution, every regular, special, or called meeting or session of every governmental body shall be open to the public.” ² Tex.Rev.Cxv.StatAnn. 6252-17, § 2(a). Section 2 also contains several provisions that detail situations in which a meeting may be closed to the public or, alternatively, meetings that are exempt from coverage under the Act.³ Appellants collectively refer to these provisions as “exceptions.”

In Appellants first and second grounds for review, they argue that these provisions are exceptions which, accordingly, must be pleaded or negated in the charging instrument. In an attempt to resolve this issue, the court of appeals discussed, in depth, whether the various provisions under §§ 2(b) — (t) were, in fact, exceptions to the open meeting mandate under the Act.⁴ See Martinez, 829 S.W.2d at 367. After deciding that some provisions were exceptions and others were not, the court of appeals held that the informations properly pleaded and negated the exceptions, as determined by the court. However, such an analysis was unnecessary under the facts of this case.

Texas Open Meetings Act

Section 2 of the Act provides:

[N]o closed or executive meeting or session of any governmental body for any of the purposes for which closed or executive meetings or sessions are hereinafter authorized shall be held unless a quorum of the governmental body has first been convened in open meeting or session for which notice has been given ... and during which open meeting or session the presiding officer has publicly announced that a closed meeting or session will be held and identified the section or sections under this Act authorizing the holding of such closed or executive session.

Tex.Rev.Civ.Stat. art. 6252-17, § 2(a) (emphasis added).⁵

In their brief, Appellants claim that the Act does not require compliance with the above procedural steps if the proposed, closed meeting falls under one of the “exceptions” set forth in the Act. Appellant’s Brief p. 5. However, this is precisely the situation in which notice is specifically required.

A careful and plain reading of § 2(a) reveals that, if a closed meeting is authorized (i.e. an exception applies), the governing body must comply with the procedural steps enumerated in § 2(a).⁶ On the other hand, if one of the exceptions does not apply, then the closed meeting is violative of the Act regardless of whether the governing body complied with the procedural steps. Our interpretation is consistent with the public policy behind the Open Meetings Act that the public should be aware of which members of a governing body are present in a closed meeting and whether a quorum exists. Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent School District, 706 S.W.2d 956, 959 (Tex.1986).⁷ Appellants’ construction of the Act would circumvent this purpose.

II.

Turning to the facts of this case, the relevant portion of the informations specifically charge Appellants with violating the Open Meeting Act by:

[Gathering with members of the Bee County Commissioners’ Court and having a verbal exchange between a quorum of members of the Bee County Commissioners’ Court, during which public business and public policy over which the governmental body has supervision and control was discussed and considered, and when they had knowledge that notice of the meeting had not been posted and that the body did not first convene in an open meeting then publicly announce that a closed meeting would be conducted.8

The informations clearly charge Appellants with failing to comply with the procedural prerequisites, contained in the latter portion of § 2(a) of the Act. As noted above, the governing body must comply with these procedures in order to properly hold a closed meeting. No exceptions exist for a failure to satisfy these requirements. Accordingly, whether the alleged exceptions under the remainder of § 2 of the Act have been pleaded or negated in the information is immaterial to the offense charged in this case. Under the informations, Appellants could be found guilty even if one of the alleged exceptions applied because their offense (failing to give notice) does not depend upon the exceptions. Appellants’ first two grounds for review are overruled.

III.

Appellants’ final ground for review alleges that the information failed to provide Appellants with adequate notice of the charges against them. However, the infor-mations clearly allege that Appellants failed to comply with the procedural requirements of the Act prior to holding a closed meeting. This provided adequate notice of the offense charged. Appellants’ third ground for review is overruled.

We conclude that the informations properly alleged the offense. Consequently, the trial court erred in quashing the informa-tions. Judgment of the Court of Appeals is affirmed.

1 . See now Tex.Gov't Code Ann. § 551.001 et seq. (Vernon Supp.1994).

2 . The "Violations and Penalties” portion of the Act provides:

Any member of a governing body who knowingly calls or aids in calling or organizing a special or called meeting or session which is closed to the public, or who knowingly closes or aids in closing a regular meeting or session to the public, or who knowingly participates in a regular, special, or called meeting or session which is closed to the public where a closed meeting is not permitted by the provisions of this Act, shall be guilty of a misdemeanor and on conviction is punishable by a fine of not less than $100 nor more than $500 or imprisonment in the county jail for not less than one month nor more than six months, or both.

Tex.Rev.Civ.Stat. art. 6252-17, § 4(a).

3 . Under § 2, a meeting of a governmental body may be closed to some or all of the public in the following situations: exclusion of witnesses during hearings, private consultations between a governmental body and its attorneys regarding litigation or settlement matters, employer/employee relations, and certain school board meetings. On the other hand, meetings by non-governmental bodies, such as grand juries, and agencies whoEy funded by the federal government are not subject to the Act. See subdivisions (b)-(t) of art. 6252-17, § 2.

4 .Although it was not necessary to address the issue of pleading and negating exceptions in charging instruments, we feel that it is necessary to clarify portions of the court of appeals' opinion for the benefit of the lower courts. The court of appeals applied the common law of pleading, proving, and negating exceptions to offenses because AppeEants were charged with violating a civil statute. Martinez, 829 S.W.2d at 366. However, the court’s reEance on the common law is misplaced. The Texas Penal Code, and not the common law, applies to offenses defined by other statutes, unless the statute defining the offense provides otherwise. Tex.Penal Code Ann. § 1.03(b) (Vernon 1991).

Under the Texas Penal Code, the charging instrument must negate the existence of an exception in the charging instrument. Id. § 2.02(b). However, § 2.02(b) was enacted prior to this Court's decision in Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990).

The negation of any exception to the offense is an element of the offense. Tex.Penal Code § 1.07(13)(D). In Studer, this Court held that the 1985 amendments to the Texas Constitution eliminated the necessity of pleading each and every element of an offense in the charging instrument in order to confer jurisdiction in the court. Studer, 799 S.W.2d at 272. Consequently, the argument can be made that it is no longer necessary to negate each and every exception to an offense in the charging instrument, as required under § 2.02(b). However, we express no opinion on this issue, as it was not before us in this case.

5 . Broken down specifically, these procedural requirements include: 1) convening an open meeting of a quorum of the governing body; 2) giving notice of the open meeting; 3) announcing in the open meeting that a closed meeting will take place; and 4) identifying the section under the Act that authorizes the closed meeting.

6 . See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991) (“if the meaning of the statutory text, when read using the established canons of construction relating to such text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning.”).

7 . In Cox, the Texas Supreme Court has characterized several provisions of § 2 of the Act as exceptions. See Cox, 706 S.W.2d at 958. Because such a determination is not necessary to the resolution of this case, we express no opinion as to whether such provisions are in fact exceptions in the context of a criminal prosecution under the Act.

8 . Emphasis added.