City of San Antonio v. Fourth Court of Appeals

MAUZY, Justice,

dissenting.

Because the court allows the Relator, City of San Antonio, to circumvent the statutory requirements of the Open Meetings Act, I dissent. In holding that the notice was sufficient to detail the purpose of the city council’s action, the court reasons that “[t]he intended beneficiaries of the Act are not individual citizens, such as the particular landowners affected by the condemnation, but members of the interested public." Maj.Op. at 765 (emphasis added). Who would be more interested than the landowners whose property is the subject of a condemnation discussion? The “interested public” describes those citizens who would be affected by the City’s decision to begin condemnation proceedings on their land. The effect of the court’s holding is that those who most need the notice of the City’s pending action are insured of getting no better notice than those who need it the least. This inequitable result thwarts the clear intent of the Open Meetings Act.

The City initiated the condemnation proceedings based on the following provision contained in the February 15, 1990 council meeting notice:

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.

Vamarie and the individual condemnees contend that this notice is insufficient as a matter of law because the land to be expropriated by the City was not “fully disclosed” as required by subsection 3A(a) of *779the Open Meetings Act. By listing county blocks 4180, 4181, 4188, and 4297, the City encompassed approximately 8,580 acres in its meeting notice. At the February 15, 1990, city council meeting, the City authorized the taking of only 930.315 acres. In reality, the City sought to condemn only about one-ninth of the land it had noticed as being considered for condemnation at the February 15 meeting. Thus, the landowners argue that the City has not fully disclosed the subject matter of the meetings as required by Cox Enterprises, Inc. v. Board of Trustees, 706 S.W.2d 956, 959-60 (Tex.1986), and that this violates the “exact and literal compliance” standard of Acker v. Texas Water Commission, 790 S.W.2d 299, 300 (Tex.1990). The landowners admit that notice does not have to describe the land with the reasonable certainty of a real estate conveyance. However, they insist that the notice must be specific enough to fully disclose the intent of the government at its meeting.

The City contends that, under Joiner v. City of Dallas, 380 F.Supp. 754 (N.D.Tex.), aff'd, 419 U.S. 1042, 95 S.Ct. 614, 42 L.Ed.2d 637 (1974), there is no constitutional requirement that the City give a more specific notice than was given here. Joiner, however, is distinguishable from the present case. In Joiner, the plaintiffs raised a federal constitutional challenge to the Texas eminent domain statutes. The district court upheld the constitutional challenge to the statutes. There was no Open Meetings Act challenge to any notice given in the suit. However, the court noted that “some of the defects detected by the plaintiffs might be cured by the Texas Open Meetings Act ... which has guaranteed to all persons access to the deliberations of any government body_” Id. at 769 n. 16.

In Cox, we held that “less than full disclosure is not substantial compliance.” 706 S.W.2d at 960. Full disclosure “requires a correspondence between the likely degree of public interest in a topic and the specificity with which the topic is stated in the notice.” Creedmoor Maha Water Supply Corp. v. Barton Springs-Edwards Aquifer Conservation Dist., 784 S.W.2d 79, 86 (Tex.App.—Austin 1989, writ denied). Simply listing a few county block numbers in the southwest part of the county hardly constitutes “full disclosure.” Arguably, if this notice did constitute full disclosure, a less descriptive notice that failed even to list the county block numbers would also be sufficient. Openness at every stage of the deliberations of a governmental body is the “command of the statute.” Acker, 790 S.W.2d at 300. Since we are bound to enforce the will of the legislature, we must hold that this notice does not “fully disclose” the City’s intent to condemn the 930.315 acres. Similarly, if the notice is inadequate to rise to the level of substantial compliance with the Open Meetings Act, it certainly cannot meet the “exact and literal compliance” standard of Acker, which this court announced just last year. 790 S.W.2d at 300. The city council meeting notice is the only advance notice the landowners would ever receive that their land was the subject of condemnation proceedings by the City. Insufficient notice deprives citizens of the right to be heard at a point in the eminent domain proceedings when their property is being considered for condemnation. Moreover, the City could use the same notice posted in this case to condemn any of the other 7,650 acres in the same county blocks. The Open Meetings Act demands a more narrow and descriptive notice. The Open Meetings Act must ensure “that the public has the opportunity to be informed concerning the transactions of public business.” Acker, 790 S.W.2d at 300. I strongly disagree with the court’s holding that interested people would have “more than sufficient notice” of the condemnation action. Maj.Op. at 765. I would hold that the notice posted by the City was inadequate to fully disclose the City’s intent to discuss condemnation proceedings on the 930.315 acres the City sought to condemn at the February 15 city council meeting.

I would also hold that the City’s posting of a meeting notice in a kiosk outside of City Hall was in violation of the statutory requirements of the Open Meetings Act. The intent of the Open Meetings Act is to *780safeguard the public’s interest in knowing the workings of its governmental bodies. Cox Enters., 706 S.W.2d at 960 (Tex.1986). In order to preserve this valuable public interest, we have demanded “exact and literal compliance” with the terms of the Act. Acker, 790 S.W.2d at 300 (Tex.1990); Smith County v. Thornton, 726 S.W.2d 2, 2-3 (Tex.1986). In Smith County, we held that orders issued by the Smith County Commissioners court at meetings on August 24 and 31 were void because the posting of the notices of the commissioners meetings violated subsection 3A(h) of the Open Meetings Act. Id. at 3. The notices of the county commissioners meetings were posted on a bulletin board on the first floor of the Smith County Courthouse on the Friday mornings preceding the Monday meetings. However, the courthouse was closed to the public between 8:30 p.m. on Friday and 6:00 a.m. on Monday. Id. at 2. We held that, because the courthouse was locked during this period, “... the notice was not posted in a place readily accessible to the general public for at least 72 hours preceding the August 24 and 31 meetings ...” as required in subsection 3A(h). Id. at 3.

In the present case, the City argues that it built the kiosk in response to the Smith County decision. The City contends that by posting the meeting notice in the kiosk on City Hall grounds, it has achieved a notice that is readily accessible to the general public for at least 72 hours before the scheduled meetings. I do not agree that by posting official notices in an unmarked, unlit kiosk on one side of the City Hall grounds that the City has satisfied the posting requirements of the Open Meetings Act. I would interpret subsections 3A(c) and (h) of the Open Meetings Act as one posting requirement for cities. In Smith County, we held that subsections 3A(d) and (h), read together, require that the notice of a county commissioners’ meeting posted on a bulletin board in a county courthouse must be readily accessible to the public for at least 72 hours before the scheduled meeting.1 Logically, this court should now read subsections 3A(c) and (h) together to hold that the notice of a city council meeting posted in the City Hall on a bulletin board must be readily accessible to the public for at least 72 hours before the scheduled meeting. I would only reach subsections 3A(c) and (h) to hold that the City has failed to comply with the Open Meetings Act in this case.

Even if we were to assume that subsections 3A(c) and (h) were not meant to be read as one posting requirement, the City’s posting method could not meet the “readily accessible” requirement of subsection 3A(h). The court of appeals held, and the City concedes, that there was no designation that the kiosk was an official posting location for notices of city business. 793 S.W.2d at 752. Additionally, the kiosk is simply not accessible. “Accessible” is defined as being open and available and something that is capable of being used or seen. Webster’s New Collegiate Dictionary 49 (9th ed. 1989). In argument before this court and evidence adduced at trial, it was shown that the kiosk can only be seen from one side of City Hall, and that the entire kiosk is unlit. A citizen approaching City Hall would have no way of knowing that an official meeting notice would be posted in the kiosk. Additionally, if the citizen went to City Hall at night and was fortunate enough to determine that a notice of an upcoming meeting of the city council was posted in the kiosk, he or she would not be able to read the notice inside the unlit kiosk.2 Therefore, the City’s *781kiosk does not meet the definition of “accessible” and could not satisfy the “readily accessible” requirement of the Open Meetings Act.

Furthermore, if we were to interpret subsection 3A(h) to allow a separate posting other than subsection 3A(c), the ability of a governmental unit to post a meeting notice at any readily accessible place could lead to an abuse of the posting requirements of the Open Meetings Act. As the court of appeals reasoned, a governmental body could potentially post a notice in another government building or annex or on a bridge railing or any other public place. 793 S.W.2d at 752 n. 3. I agree with the court of appeals that there is a potential for abuse in allowing a governmental unit to post a notice anywhere that is “readily accessible.”3 To permit a governmental body to post a notice of an upcoming meeting at any unmarked, readily accessible locale would violate the intent of the Open Meetings Act to have openness at every stage of the government’s deliberation. See Acker, 790 S.W.2d at 300.

In addition to the court’s erroneous holding that the posting of the notice was in accordance with the Open Meetings Act, there is a more fundamental and compelling reason for my dissent in this case. Our legislature has made the requirements for posting notice of a meeting of a city government body clear through the passage of subsections 3A(a), (c), and (h). We are bound by the recent legislature’s rejection of an amendment to subsection 3A(c).4 The legislative history of the attempted amendment specifically mentions the court of appeals’ decision in this case as a reason for changing the posting requirements of subsection 3A(c).5 We have long held that a statute is a creation of the legislature and should an interpretation of the statute by the courts be unacceptable to the legislature, a simple remedy is available to the legislature by the process of legislative amendment. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 186 (Tex.1968). The legislature has refused to substantially change the posting requirements of section 3A since our decision in Smith County.6 It has recently refused to amend the statute to overrule the court of appeals’ decision in this very case. When a statute is re-enacted without material change, it is presumed that the legislature knew and adopted the interpretation placed on the original act and intended the new enactment to receive the same construction. Coastal Indus. Water Auth. v. Trinity Portland, 563 S.W.2d 916, 918 (Tex.1978); Marmon, 430 S.W.2d at 187. Through five years of inaction since Smith County, and through the recent rejection of the amendment to section 3A, the legislature has indicated its approval to the present posting requirements for government meetings under section 3A. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 *782(Tex.1975); see also Robinson v. Central Tex. MHMR Center, 780 S.W.2d 169, 170 n. 4 (Tex.1989); City of Gladewater v. State, 138 Tex. 173, 157 S.W.2d 641, 643 (1941); Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 524 (1930). Only the legislature can provide the City with the relief it seeks from this court, and it has refused to do so. We cannot attempt now to legislate from the bench in order to achieve what the legislative branch of government has clearly rejected.

In sum, I would deny the City’s requested mandamus relief. Since the City has not met the posting requirements of subsections 3A(a), (c), and (h) of the Open Meetings Act, the court of appeals was correct in issuing a writ of mandamus directing the trial court to vacate the orders permitting condemnation and vacate the issuance of the writs of possession.

. Subsection (d), which is almost identical to subsection (c), reads as follows:

A county government body shall have a notice posted on a bulletin board located at a place convenient to the public in the county courthouse.

. The Court scoffs at the idea that the City should have to accommodate the “nocturnally curious.” Maj.Op. at 768. However, the legislature clearly envisioned night accessibility to these types of meeting notices by changing the three day posting requirement in the Open Meetings Act to a continuous 72-hour posting requirement. Act of April 11, 1973, 63rd Leg., R.S., ch. 31, § 3, 1973 Tex.Gen.Laws 45, 48. See also W. Weir & C. Weir, Texas Open Meetings Act 3 (1990).

. The Court’s suggestion that (h) requires that a notice be posted "not in an obscure or remote location” is simply without any statutory support in section 3A. There is no statutory safeguard to prevent the abuses predicted by the court of appeals.

. The proposed amendment, which passed the House of Representatives but was rejected in the Senate, would have added language to subsection 3A(c) to make it read as follows:

A city government body shall have a notice posted on a bulletin board to be located at a place that is convenient and accessible to the public at all times and is in the city hall or in front of or adjacent to the city hall, but not more than 50 feet from the building, (emphasis added).

Tex.H.B. 1599, 72nd Leg., R.S. (1991).

. Recent judicial decisions have concluded that posting of these notices in an office that is closed over the weekend does not suffice for the 72-hour period of accessibility.

House Committee on Urban Affairs, Bill Analysis, Tex.H.B. 1599, 72nd Leg., R.S. (1991) (citing Smith County v. Thornton, 726 S.W.2d 2 (Tex.1986), and City of Fort Worth v. Groves, 746 S.W.2d 907 (Tex.App.—Fort Worth 1988, no writ), in addition to Vamarie, Inc. v. Ball, 793 S.W.2d 749 (Tex.App.—San Antonio 1990)).

. Even though it has twice amended section 3A since 1986, the requirements for a city or county governmental entity in posting notice of its meetings have remained the same. See Act of June 18, 1987, 70th Leg., R.S., ch. 549, § 5, 1987 Tex.Gen.Laws 2211, 2213; Act of Dec. 13, 1989, 71st Leg., 2nd C.S., ch. 1, § 15.34, 1989 Tex.Gen. Laws 105.