City of San Antonio v. Fourth Court of Appeals

GONZALEZ, Justice,

concurring and dissenting.

I concur with the court’s conclusion that the location of notice does not violate the Open Meetings Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17, § 3A(c) (Vernon Supp.1991). I dissent from part of the court's opinion and its judgment, however, because in my opinion the notice itself does not give fair notice required by the act.

The double posting (one in city hall and one on the kiosk) satisfies subsections 3A(c) and (h) of the act. Subsection (c) requires posting in the city hall “at a place convenient to the public.” The only reasonable construction of this provision is that notice must be posted in a common area of the city hall rather than in some office not readily accessible to the public. It would be unreasonable to conclude that the legislature intended that all city halls *778remain unlocked after normal business hours. The posting on the kiosk satisfies the requirement of subsection (h) for continuously accessible notice.

The content of the notice is a different matter. The agenda’s contemplated action was described as:

48. An Ordinance determining the necessity for and authorizing the condemnation of certain property in County Blocks 4180, 4181, 4188, and 4297, in Southwest Bexar County for the construction of the Applewhite Water Supply Project.

The four county blocks mentioned in the City’s notice contain approximately 8,580 acres. The ordinance authorized only 930.-315 acres to be condemned. Thus, the notice addressed approximately 7,650 acres in excess of the amount of land expected to be condemned. It is thus legally flawed because it does not provide fair notice to the particular property owners whose land the City intended to condemn. In a situation as critical as this, that is, involving the taking of private property for a public purpose, it was incumbent on the City to provide unambiguous notice to the affected property owners. This they did not do, and therefore they failed to comply with the statutory notice standard required by the Open Meetings Act. I acknowledge the difficulty in articulating a clear and easily applicable formula for what constitutes “adequate notice,” but, in a condemnation proceeding, notice must at least be sufficiently specific to give fair warning to those particular property owners whose land may be taken. See Acker v. Texas Water Comm’n, 790 S.W.2d 299, 300 (Tex.1990) (public entitled to know what government decides and to observe how and why all decisions are reached); Cox Enterprises, Inc. v. Board of Trustees, 706 S.W.2d 956, 960 (Tex.1986) (the Open Meetings Act adequate notice standard demands full disclosure of the subject matter). I further acknowledge that general notice in certain situations, such as utility rate changes within a city, will satisfy the Open Meetings Act’s notice requirement. See Texas Turnpike Auth. v. City of Fort Worth, 554 S.W.2d 675 (Tex.1977) (general notice sufficient for bond issue to enlarge turnpike); Lower Col. River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex.1975) (utility rate case). However, in situations where the city proposes to condemn land, more specific notice is required. Stating that the expected area of condemnation covers “County Blocks 4180, 4181, 4188, and 4297, in Southwest Bexar County” is not specific enough to satisfy the statute. Therefore, I dissent.