Thornton v. Smith County

690 S.W.2d 949, 1985 Tex. App. LEXIS 6615

• Court: Court of Appeals of Texas
• Decided: May 9, 1985
• Docket: 12-83-0027-CV
• Status: Published

Opinions

COLLEY, Justice.

George Thornton, Joe Davenport and Glenn Ellerd, plaintiffs/appellants (Landowners), appeal from a take-nothing judgment rendered in a bench trial in their suit against Smith County, County Judge Bob Hayes, Smith County’s four commissioners and Tyler Pipe Industries of Texas, Inc. (Tyler Pipe), defendants/appellees.

Landowners sought relief under the Uniform Declaratory Judgment Act¹ and Texas Revised Civil Statutes, art. 6252-17 (Vernon Supp.1985), popularly known as the Open Meetings Act.

Specifically, Landowners sought judgment declaring illegal and void certain orders made by the commissioners court on August 24th and 31st, 1981. The August 24th order closed a segment of County Road 431. The August 31st order authorized the county judge to execute a deed on behalf of Smith County to Tyler Pipe of such segment. Additionally, Landowners sought cancellation of said deed, and a permanent injunction, enjoining the county from closing such road segment, and enjoining Tyler Pipe from occupying or obstructing the same.

Landowners complain that the evidence is factually insufficient to support the trial court’s express finding that the commissioners court substantially complied with the provisions of the Open Meetings Act, that the trial court erred in concluding that substantial, rather than literal, compliance by a governmental body with the notice provisions of the Open Meetings Act is sufficient, and that the trial court erred in denying Landowners’ prayer for injunctive relief. We reverse and render in part, and reverse and remand with instructions in part.

We summarize the facts giving rise to this dispute. Sometime before August 3, 1981, following informal meetings of various county officials and representatives of Tyler Pipe, a “freeholders’ ” petition to close a portion of County Road 431 (Jim Hogg Road) was caused to be prepared and circulated to members of the public. The petition was dated August 3, 1981, and bore the signatures of thirty-nine individuals at the time it was posted in apparent conformity with the requirements of former art. 6705,² which read:

The commissioners court shall in no instance grant an order on an application for any new road, or to discontinue an original one, or to alter or change the course of a public road, unless the applicants have given at least twenty days notice by written advertisement of their intended application, posted up at the court house door of the county and at two other public places in the vicinity of the route of such road. All such applications shall be by petition to the commissioners court, signed by at least eight freeholders in the precinct in which such road is desired to be made or discontinued, specifying in such petition the beginning and termination of such road, provided an application to alter or change a road need not be signed by more than one freeholder of the precinct.

On August 3, 1981, the commissioners court, in special session, voted unanimously to conduct a public hearing on such petition at 10:00 a.m. on Monday, August 24, 1981. On Friday, August 21, 1981, at 9:00 a.m., notice of the agenda for the meeting of August 24, 1981, was posted on a bulletin board in the hallway of the first floor inside the Smith County Courthouse. The “Regular Agenda,” item eight, on that notice reads: “Conduct public hearing on closing a portion of the Jim Hogg Road (County Rd. 431) adjoining part of Tyler Pipe Foundry Property [sic].” Corrected partial minutes of the August 24th meeting reveal that while the votes of the members of the commissioners court were not recorded, a “motion,” not quoted in the minutes, was made “on closing a portion of Jim Hogg Road adjoining a part of the Tyler Pipe & Foundry property,” the motion was seconded, and carried by affirmative vote of at least a majority of the court. County Judge Bob H. Hayes testified at trial, that at the August 24th meeting, the motion to close the road segment was adopted by unanimous vote.

On Tuesday, August 28, 1981, at 10:00 a.m. notice of the agenda of a special session of the Smith County Commissioners Court to be held on August 31, 1981, at 10:00 a.m. was posted on a bulletin board located in the hallway of the first floor of the courthouse. Item 6 of the “Regular Agenda” for the August 81, 1981, session read: “Authorize County Judge to execute a Deed [sic] to Tyler Pipe Industries, transferring Smith County’s interest in the portion of County Road 431 that was closed by the Commissioners Court on August 24, 1981.” The corrected partial minutes of the August 31st meeting reflect that by unanimous vote, the commissioners court authorized the county judge to execute a “quit-claim deed” to Tyler Pipe covering that portion of County Road 431 closed by order of the commissioners court on August 24, 1981. Judge Hayes, acting pursuant to such order, executed a quit-claim deed to Tyler Pipe on October 9, 1981, quit-claiming to Tyler Pipe “all the undivided rights, titles, and interest of Smith County and the public” in a portion of County Road 431 which consisted of a tract some 80 feet in width and 1,825 feet in length, containing an area of approximately 3.35 acres.

The undisputed evidence before us reflects that the Smith County Courthouse is closed on Saturdays and Sundays. The evidence further shows that the main entrances to the first floor of the Smith County Courthouse are locked between the hours of 7:00 and 8:30 p.m. on Fridays, and remain locked until 6:00 or 6:30 a.m. on the Monday following. Judge Hayes testified that after-hours entry into the building by the public can be obtained through the Sheriff’s office which is located in the basement of the courthouse. However, Judge Hayes candidly admitted that public access to the first floor of the courthouse through the Sheriffs office has been limited on weekends. He further testified that the only time during which an agenda posted on Friday morning was “readily accessible and easily accessible in the manner in which a person would have a right to expect to walk in and see a public notice” before a Monday morning meeting of the Commissioners Court would be between the hours of posting on Friday until 8:30 p.m. on Friday night, and between the hours of 6:00 or 6:30 a.m. on Monday until the time of the meeting.

In this direct³ attack on the orders of the commissioners court, Landowners seek to void the August 24th and August 31st orders of the commissioners court on the ground that the written notices required by TEX.REV.CIV.STAT.ANN. art. 6252-17 Section 3A(h) (Vernon Supp.1985)⁴ were not posted in substantial or literal compliance therewith. Subsection (h) reads in pertinent part:

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

In this case, the notices of the two meetings were posted in a place readily accessible to the public; however, the real issue here is whether the language used by the legislature in the current version of Subsection (h) is so specific in requiring that the notice be readily accessible to the public “at all times for at least 72 hours preceding the scheduled time of the meeting” as to preclude the application thereto of the judicially fashioned rule of “substantial compliance.” Tyler Pipe argues that the evidence sustains the trial court’s finding that the notices were posted in substantial compliance with the Open Meetings Act. County argues that the substantial evidence rule applies here, and that the evidence produced at trial reasonably supports the orders of the commissioners court, and thus the judgment below should not be disturbed. County also contends that in cases involving the notice requirements of the Open Meetings Act, such requirements are met when there is substantial compliance. That is, that the time and manner of posting the notice realistically satisfies the purposes of the statute, citing one of our cases, Stelzer v. Huddleston, 526 S.W.2d 710 (Tex.Civ.App.—Tyler 1975, writ dism’d). The question presented is not whether the action taken by the commissioners court is supported by substantial evidence, but rather should the actions of the commissioners court be voided because of the claimed violations of the requirements of Subsection (h) of Section 3A of the Open Meetings Act. In Stelzer v. Huddleston, supra, Judge Moore, writing for this Court, stated that the provisions of former Subsection 3A(h)⁵ of art. 6252-17, although mandatory, were subject to the substantial compliance rule, citing inter alia, Lipscomb Independent School District v. County School Trustees, 498 S.W.2d 364 (Tex.Civ.App.—Amarillo 1973, writ ref'd n.r.e.). The pertinent language of Subsection (h) confronting this court in Stelzer was, “Notice of a meeting must be posted for at least 72 hours preceding the day of the meeting.(Emphasis added.) The Lipscomb court was dealing with the original version of Subsection (f) of art. 6252-17.⁶ In pertinent part, the original version read: “Notice of a meeting must be posted for at least the three days preceding the day of the meeting.” The Amarillo court in Lipscomb held that notice of the meeting of the County Board of Trustees, set for Tuesday, May 26, 1970, which was posted on Friday, May 22, 1970, inside the courthouse at about 5:00 p.m. constituted a substantial compliance with the notice requirements of the Open Meetings Act. That court so held in the face of evidence that all entrances to the courthouse were locked between 5:00 and 6:00 p.m. on May 22, and remained locked Saturday and Sunday the 23rd and 24th days of May. Both Stelzer and Lipscomb7 are inapposite here because the language of Subsection (h) was drastically changed by the 1975 amendments. The question of whether conduct of a governmental body constitutes substantial compliance with such notice provisions is a mixed question of law and fact and must be determined on a case-by-case analysis of the language of the statute and the evidence before the court. In McConnell v. Alamo Heights ISD, 576 S.W.2d 470, 474 (Tex.Civ.App.—San Antonio 1978, writ ref’d n.r.e.), the court applied the substantial compliance rule to the notice requirements of the Open Meetings Act as did that court in Santos v. Guerra, 570 S.W.2d 437, 439 (Tex.Civ.App.—San Antonio 1978, writ ref’d n.r.e.). Again, the San Antonio Court in its much cited opinion in Toyah ISD v. Pecos-Barstow ISD, 466 S.W.2d 377 (Tex.Civ.App.—San Antonio 1971, no writ), held that governmental bodies must substantially comply with the mandatory provisions of Section 3A of the Open Meetings Act. “Substantial compliance,” with the notice provisions of the Open Meetings Act, has been held to mean “compliance with the essential requirements” thereof. Toyah ISD v. Pecos-Barstow ISD, supra.⁸ Our court in Stelzer v. Huddleston, supra, wrote that substantial compliance is achieved when the action of the governmental body “provides realistic fulfillment of the purpose for which the mandate was incorporated in the statute,” Id. 713, and that where the “¡objective sought by the ‘notice’ provision has been fully attained,” the mandate of the statute has been satisfied. In Cameron County Good Government League v. Ramon, 619 S.W.2d 224, 231 (Tex.Civ.App.—Beaumont 1981, writ ref’d n.r.e.), the court, by way of dictum, stated that literal, not substantial, compliance with the notice requirements of Section 3A(h) was necessary. We agree with the Beaumont Court.

In our review of the legislative history of the notice requirements of the Open Meetings Act, we note, as did the Beaumont Court, that the revisions made by the legislature since 1969 strongly suggest that the legislature intended to strengthen the notice requirement of the act. In the original act,⁹ Section 3A(f) merely required, “Notice of a meeting must be posted for at least the three days preceding the day of the meeting.” Section 3A(h) of the 1973 amendments¹⁰ provided that “[njotice of a meeting must be posted for at least 72 hours preceding the day of the meeting.” The current language of Subsection (h) of Section 3A further requires that the notice “must be posted in a place readily accessible to the general public at all times for at least 72 hours preceding the scheduled time of the meeting.” Such language leaves little, if any, room for application of the rule of substantial compliance. The difficulty in applying such rule here is obvious. The language of Subsection (h) is concise, specific and unambiguous. Our duty is to apply the same as written without adding to, or taking away from the meaning of the precise language embodied in the statute. Although we may be of the opinion that the requirements of the notice are too restrictive, nevertheless we are not empowered to legislate a change when the import of the statute is plain and unambiguous. Such prerogative rests with the legislature. Hence we have concluded in this case that the trial court’s finding that the commissioners court substantially complied with the notice provisions of Section 3A(h) for their meetings of August 24th and August 31, 1981, is immaterial. We hold that the commissioners court was bound to comply literally with the provisions of Section 3A(h). This it did not do. We sustain Landowners’ fifth point.

Landowners by their seventh point contend that the commissioners court was without power or authority to order the “closing” of the segment of Jim Hogg Road because such road was a public road at the time landowners purchased their lands abutting the same, and that the trial court erred in refusing to enjoin Smith County from closing such portion of the road and to enjoin Tyler Pipe from obstructing the same.

In support of their argument on the law, Landowners cite, among other cases, Compton v. Thacker, 474 S.W.2d 570 (Tex.Civ.App.—Dallas 1971, writ ref’d n.r.e.). From our reading of Compton, supra, as well as Moore v. Commissioners Court of McCulloch County, 239 S.W.2d 119 (Tex.Civ.App.—Austin 1932, writ ref’d), and Meyer v. Galveston H. & S.A. Ry. Co., 50 S.W.2d 268, 273 (Tex.Comm’n App.1932, holding approved), we have concluded that the order of the commissioners court closing the segment of the road was void. This is not to say, however, that the commissioners court may not by appropriate orders, based on substantial evidence, reasonably supporting the same, discontinue county road 431 or otherwise alter or re-route said road, or any portion thereof agreeable to the provisions of the County Road and Bridge Act, TEX.REV.CIV.STAT.ANN. art. 6702-1, Sections 2.001, et seq. (Vernon Supp.1985). However, the commissioners court does not possess the power or authority to take any action to obstruct Landowners’ free and uninterrupted passage over, along and across said road or any segment thereof. Moore v. Commissioners Court, supra, at 121. We sustain Landowners’ seventh point.

We need not address Landowner’s points 1, 2, 3, 4 and 6 and decline to do so.

We sever out those portions of the judgment below denying the declaratory relief sought by Landowners, and here render judgment, declaring the orders of the Smith County Commissioners Court dated August 24, 1981, and August 31,1981, closing the segment of Jim Hogg Road, and authorizing Honorable Bob H. Hayes, County Judge of Smith County, to execute a deed to Tyler Pipe to be null and void. We cancel the quit-claim deed from Smith County to Tyler Pipe Industries of Texas, Inc., dated October 9, 1981, and shown to be recorded in Vol. 1909, pp. 393-395 of the Deed Records of Smith County, Texas. We reverse the judgment below insofar as it denied Landowners the injunctive relief sought, and remand that portion of this cause with instructions that the trial court forthwith order the issuance of a permanent injunction enjoining Smith County from closing any portion of Jim Hogg Road (County Road 431) located between the south right-of-way line of County Road 471 and the north right-of-way line of County Road 492 (Ann Campbell Road), and enjoining Tyler Pipe Industries of Texas, Inc. from occupying or placing obstructions upon any portion of Jim Hogg Road located between the south right-of-way line of County Road 471 and the north right-of-way line of County Road 492 (Ann Campbell Road). All costs herein are assessed against appellees, Smith County and Tyler Pipe Industries of Texas, Inc., jointly and severally.

1 . Texas Revised Civil Statutes art. 2524-1 (Vernon 1965).

2 . Acts 1884, 18th Leg. 1st called session, p. 20, 1884 Tex.Gen.Laws vol. 9, p. 553, repealed by Acts 1983, 68th Leg. ch. 288 § 1, 1983 Tex.Gen. Laws 1431, 1433.

3 . See Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324, 328 (1956); Mobil Oil Corp. v. Matagorda County Drainage District, 597 S.W.2d 910, 911—912 (Tex.1980).

4 . Hereinafter referred to as the Open Meetings Act.

5 . Acts 1973, 63rd Leg. ch. 31 § 3, 1973 Tex.Gen. Laws 47, 48, amended by Acts 1975, 64th Leg. ch. 367 § 1, 1975 Tex.Gen.Laws 968 (present wording).

6 . Acts 1969, 61st Leg. ch. 227 § 1, 1969 Tex.Gen. Laws 674, amended by Acts 1973, 63rd Leg. ch. 31, § 3, 1973 Tex.Gen.Laws 47, 48, Acts 1975, 64th Leg. ch. 367 § 1, 1975 Tex.Gen.Laws 968.

7 . The Lipscomb court observed that the notice provisions of Section 3A made no requirement that the notice be accessible to the public during the entire three-day period.

8 . The San Antonio court concluded that the notice provisions of the Open Meetings Act are mandatory and cites Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 646 (Tex.1975).

9 . See footnote 6.

10 . See footnote 5.