City of Fort Worth v. Groves

KELTNER, Justice,

dissenting.

I respectfully dissent. Specifically, I disagree with the majority’s holding that there is ample evidence to support the trial court’s finding of fact that notice of the meeting did not meet the requirements of the Texas Open Meetings Act.1

Our Supreme Court has recently held that section 3A(h) of the Open Meetings Act requires that governmental entities must literally comply with the notice procedures of the Act. Smith County v. Thornton, 726 S.W.2d 2, 3 (Tex.1986). In reaching this decision, the Supreme Court relied heavily upon the Court of Appeals’s decision which analyzed the legislative history of section 3A(h). Thornton v. Smith County, 690 S.W.2d 949 (Tex.App. — Tyler 1985), affd in part, rev’d in part, 726 S.W.2d 2 (Tex.1986). The Supreme Court’s opinion overrules several Courts of Appeals’ decisions holding that only substantial compliance with the notice procedures is required by the Act.2

To comply with the Act, county government must take five steps to give notice:

1. Post a written notice (of date, time, place and subject matter of the meeting);
2. On a bulletin board (at a convenient place);
3. In the county courthouse;
4. At a place readily accessible to the public at all times; and
5. For at least 72 hours preceding the meeting.

TEX.REV.CIV.STAT.ANN. art. 6252-17, sec. 3A(a), (d), and (h) (Vernon Supp.1988).

All the parties agree that written notice was posted on a bulletin board in the Tar-rant County Courthouse at least 72 hours prior to the meeting. However, the parties disagree whether the notice was “readily accessible” as required by section 3A(h) of the Act.

The record before us contains the testimony of six witnesses on the issue of notice under the Act.

Two witnesses, both county employees, testified that the meeting notice was typed and duplicates posted at two locations at least 72 hours prior to the Commissioners’ *920Court meeting. One copy was posted in the County Administration Building, where the Commissioners’ Court is located, and the other was posted on a bulletin board in the Tarrant County Courthouse. This testimony is uncontroverted.

Ken Groves, the appellee, testified that on advice of counsel, he checked the accessibility to the two posting places almost two months after the action of the Commissioners’ Court of which he complains. Groves attempted to check the two posting places at 10:30 p.m. on a Sunday night in December.

Groves testified that he attempted to enter the courthouse building through the main doors on the south side of the building, but that the doors were locked. He admitted that he did not check any other of the eight entrances to the courthouse. (Groves acknowledged that he was well acquainted with the courthouse because he often had business there as a result of his work as a surveyor.) Instead, he proceeded to the County Administration Building across the street. The door to that building was unlocked. Groves confronted a deputy sheriff who told him that the building was closed.3 Groves did not tell the deputy that his purpose was to view the public notices. Instead, he merely asked to walk around the five-story building. The deputy responded that the building was closed, but would reopen in the morning.

Neither Groves nor any other witness testified that the notice posted on August 21, 1986 was not posted at a place readily accessible to the public for 72 hours before the August 25, 1986 meeting.

James McCreight, Director of Tarrant County Services, testified concerning the accessibility of the courthouse to citizens. His testimony does not conflict with that of Groves. McCreight testified that there are between six and seven entrances to the courthouse. The courthouse actually consists of two buildings, known as the “old courthouse” and the “civil courts” building. These buildings are connected by a two-story closed-in walkway that connects the ground floor of the Civil Courts Building with both the ground floor and basement of the old courthouse.

All doors to the courthouse are open from 7:00 a.m. until 6:00 p.m. Between the hours of 6:00 p.m. and 7:00 a.m. on weekdays and all day Saturday and Sunday, all doors except the north door to the walkway area are locked for security reasons. McCreight testified that the security reasons for locking the courthouse included protection of vital government records, safety of county personnel who worked during the evening, and safety of citizens who entered the courthouse to view posted notices.

During the evenings and weekends, a deputy sheriff occupies a guard station which is located in the walkway area. The deputy provides security and allows citizens with business at the courthouse in and out of the two buildings. While only the north door to the walkway is unlocked, this entrance is the most accessible to the building and to the bulletin board where public records are posted.

Once inside the building, the notices are at a convenient place as they are in a basement hallway. A citizen seeking access to the notices is not forced to walk through any county departments or doors. Instead, the citizen need only walk down a hallway directly to the bulletin board between 75 and 80 feet away from the entrance.

McCreight testified that the security of the courthouse is left to the Sheriff’s Department. During the evenings and weekends, the north door remains unlocked unless the deputy on security duty is making rounds. During these brief intervals, the door is locked. A citizen seeking entry may utilize a button that activates a loud bell which alerts the deputy. This “night *921bell” is clearly identified by a sign at the north entrance to the walkway, which instructs visitors to ring a second time if no one appears within five minutes. Additionally, the night bell is loud enough to be heard throughout the building. When the deputy hears the bell, he or she immediately returns to the entrance. At most, there is between a five and ten minute wait.

Johnny Prince, Captain of the Patrol Division of the Tarrant County Sheriffs Department, also testified. His testimony does not conflict with that of Groves or McCreight. For the most part, Captain Prince's testimony confirms the testimony of McCreight. However, Prince further testified that in October of 1985, some nine months before the posting of which Groves complains, he sent out a memo to all deputies on security duty. The memo dealt with, “After Hours and week-end viewing of public Notices.” The directory part of that memo stated:

Effective this date you are to allow anyone wishing to view posted public notices entry to your assigned areas after hours and on week-ends. Continue to maintain necessary security when doing so by accompanying them if they should otherwise be out of your view.4

Captain Prince also testified that any person coming after hours or on weekends is required to “state their business” before being allowed access. The guard does have discretion to turn away a citizen who the guard does not believe wants access to the building for purposes of looking at the notices. If the guard has doubt, he is to contact his supervisor for further instructions.

The sixth witness was Deputy Sheriff Ray Murray, Jr. Deputy Murray’s testimony does not conflict with that of Groves or McCreight, and is slightly different from Prince’s testimony on only one ground.5 Murray is assigned to security duty. Deputy Murray testified that he was aware of the October, 1985 memo and that it was posted in the guard shack. He stated that any person wanting to view the notice on the bulletin board was allowed entrance. Deputy Murray further testified that if a citizen acted suspicious in requesting alleged access to the bulletin board, he would contact his supervisor to determine what to do.

No witness testified that, any citizen wishing to view the public notices was ever denied access to the courthouse.

After hearing this evidence, the trial judge entered two findings of fact which are attacked by the appellee, City of Fort Worth. Specifically, findings of fact six and seven state:

6. The bulletin board in the basement of the Tarrant County Courthouse and the fifth floor of the Tarrant County Administration Building were not places readily accessible to the general public at all times on the dates August 21, August 22, August 23, August 24, and August 25, 1986.
7. The public notice of the agenda for the Commissioners’ Court meeting of Monday August 25, 1986 was not 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.

The appellee, City of Fort Worth, attacks both findings of fact. The City’s attack is on the ground there is no evidence, or factually insufficient evidence, to support the findings and that the findings are *922against the great weight and preponderance of the evidence.

In determining a “no evidence” point, we are to consider only the evidence and inferences which tend to support the trial court’s finding and disregard all evidence and inferences to the contrary. See Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985); In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is any evidence of probative force to support the trial court’s finding, the point must be overruled and the finding upheld. On the other hand, in reviewing a point of error which claims there is insufficient evidence to support the finding, we are required to consider all the evidence in the case. See In Re King’s Estate, 244 S.W.2d at 661-62. In this regard, we do not have the power to make findings of fact, but only to “unfind” facts that are not supported by evidence. See Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744-45 (Tex.1986).

Most importantly we cannot substitute our finding for that of the fact finder. See Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986). However, it is our duty to overturn judgments which are not based on evidence, or are based on insufficient evidence.

It is my opinion that there is little and certainly insufficient evidence to support the trial court’s sixth and seventh findings of fact. In considering all the evidence, I believe the evidence in favor of the finding is so weak and the evidence contrary to the finding is so overwhelming that the finding should be set aside. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

There are only three passages of evidence that tend to support the trial court’s finding.6 The first is Ken Groves’s statement that the “front door” of the courthouse was locked at 10:30 p.m. on December 14, 1986. The second is Deputy Murray’s statement that on one occasion, he did not arrive back from his rounds in time to admit an unknown citizen seeking entry to the courthouse for unknown reasons. The third is the testimony of McCreight, Captain Prince and Deputy Murray to the effect that all doors save one were locked during weeknights and weekends.

The remainder of the evidence established that any citizen seeking access to the legislatively mandated place for posting (the courthouse) could obtain access upon reasonable investigation and inquiry. Specifically, the uncontroverted testimony was that one door of the courthouse remained unlocked, except for brief periods of time. During these periods a “night bell” was available for use.

Additionally, the deputy(ies) on security duty were instructed to admit persons seeking to view the posted notice and did so. There is no evidence that any citizen was prevented (by delay, inconvenience or lack of access) from viewing the notices at the courthouse at any time.7 Furthermore, there is no evidence that any citizen was denied ready access to the notice of the meeting which Groves complains.

However, Groves argues that the facts of a recent Supreme Court case are almost identical to the facts in the instant case. See Thornton v. Smith County, 690 S.W.2d 949, 951 (Tex.App.—Tyler 1985), *923affd in part, rev’d in part, 726 S.W.2d 2 (Tex.1986). I disagree. The facts are similar, but there are crucial differences.

In Thornton, citizens attacked an action by Commissioners’ Court on the same grounds argued in this case. The notice of the meeting was posted on the first floor of the courthouse on Friday for a meeting on Monday. The evidence demonstrated that all first floor entrances to the courthouse were locked on the weekends. As a result the only entrance was through the Sheriffs Department located a floor below in the basement.

Significantly, the Smith County Judge testified that entrance through the Sheriffs Department was limited. He further testified that the only time access to the bulletin board 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” was during the weekdays before 8:30 p.m. and not during weekends. Thornton, 690 S.W.2d at 951.

The testimony by the Smith County Judge was clearly ample to support a finding that the notice was not readily accessible.8 However, the evidence in the instant case is far less and falls below the sufficiency of evidence to support a finding.

In my opinion, the term “readily accessible” does not mean immediate access or access without mild inconvenience. The word “readily” is defined variously in Webster’s Third New International Dictionary as “with fairly quick efficiency”; “reasonably fast”; “with a fair degree of ease”; and “without much difficulty.” These terms define the process adopted for access to the public postings in the instant case.

In my opinion all citizens have a right to view public postings at any time and to complain if they are denied that right. However, with every right comes an obligation to use due diligence to exercise the right. In other words a citizen may have to suffer small inconveniences to exercise his or her rights under the law.9

Upon these facts and for these reasons, I dissent from the majority’s ruling and judgment.

FARRIS, J., joins.

. TEX.REV.CIV.STAT.ANN. art. 6252-17, sec. 3A (Vernon Supp.1988). I cite the 1988 Supplement. However, at the time this case was tried, the trial court had before it a Vernon’s Statute pocket part with an earlier date. The content of that supplement was identical to the wording of the notice provisions of the statute cited.

At the time the case was tried, section 3 had not been amended to provide that any act of a governmental entity in violation of the Act was voidable. See TEX.REV.CIV.STAT.ANN. art. 6252-17, sec. 3(a) (Vernon Supp.1988).

. River Road Neighborhood v. South Texas Sports, 720 S.W.2d 551, 555 (Tex.App.—San Antonio 1986, writ dism’d); McConnell v. Alamo Heights Ind. Sch. Dist., 576 S.W.2d 470, 474 (Tex.Civ.App.—San Antonio 1978, writ refd n.r. e.); Stelzer v. Huddleston, 526 S.W.2d 710, 713 (Tex.Civ.App.—Tyler 1975, writ dism’d); Lipscomb Ind. School Dist. v. County School Trustees, 498 S.W.2d 364, 366 (Tex.Civ.App.—Amarillo 1973, writ refd n.r.e.).

. At one point in the record, Groves testified the deputy told him that the courthouse was closed. However, he later clarified his testimony to re-fleet that the deputy told him that the Administration Building rather than the courthouse was closed.

. In most instances, a person viewing the public notices would not be out of view of the guard's station, as the guard's station is located between 75 and 80 feet down the hallway from the bulletin board.

. Captain Prince testified that he was not aware of any occasion in which a deputy could not return fast enough from his rounds to let a citizen wanting entry to enter the building. However, Deputy Murray testified that in one instance, he returned to the north walkway door after hearing the bell and saw the citizen who evidently rang the bell walk around the corner. There is no indication in the record as to the date of the occurrence or the identity of the citizen involved.

. Arguably there is one other source of evidence. At page 30 of the Statement of Facts for the December 19, 1986 hearing, the trial judge announces that he "will take judicial knowledge also of how people get in and out of the Courthouse at nights and weekends.” The trial court was not asked to take judicial knowledge by any of the parties, and the court did not state of what facts he intended to take judicial knowledge. See TEX.R.CIV.EVID. 201.

Since the matter of public ingress and egress to the courthouse was the chief issue of dispute, the trial court should have stated the facts of which he took knowledge. As a result, I do not consider the trial court’s announcement as any evidence tending to support or reject the finding. To hold otherwise would destroy the concept of appellate review of evidence points, which requires appellate courts to analyze specific items of evidence.

. In both findings six and seven, the trial court found that the posting outside the Commissioners' Court in the County Administration Building was not a posting that was "readily accessible” to the public.

. The trial court found that the evidence did support a finding that Smith County had "substantially complied" with the notice provision. The Court of Appeals and Supreme Court found literal compliance rather than substantial compliance is die test.

. These inconveniences are slight when measured against the major inconvenience which might be caused to the public by a citizen who does not thoroughly pursue access to notices posted pursuant to the Act. The Act currently provides that any governmental action taken in violation of the Act is voidable. TEX.REV.CIV. STAT.ANN. art. 6252-17, sec. 3(a) (Vernon Supp.1988).

As a result, a citizen may attack acts of a governmental entity on the grounds of notice years after their enactment. In such cases it is unreasonable to suggest that a citizen who did not diligently pursue his right may seek to overturn the action on notice grounds.