dissenting.
I respectfully dissent from the opinion of the majority. A sketch of the area in question follows:
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The trial court made and filed findings of fact and a conclusion of law as follows:
FINDINGS OF FACT
1. The Commissioner’s Court of Smith County, Texas, substantially complied with procedures for the discontin*955uance of the segment of the road in question.
2. The Commissioner’s Court of Smith County, Texas substantially complied with the Open Meetings Law.
3. There was no fraud involved in the actions of the Commissioner’s Court of Smith County, Texas, in connection with the discontinuance of the segment of the road in question or its conveyance.
4. There was no abuse of discretion by the Commissioner’s Court of Smith County, Texas, in the discontinuance of the road segment in question or its conveyance.
5. The orders of the Smith County Commissioner’s Court concerning the discontinuance of the road segment in question and the conveyance are regular on their face.
The one conclusion of law was: The Plaintiffs are not entitled to the relief sought by their petition.
In Stedman v. Georgetown Savings and Loan Association, 595 S.W.2d 486, 488 (Tex.1979), the Supreme Court, writing on whether there was evidence to support the findings of the lower courts, held, “It is fundamental that these fact findings must be upheld by us if there is more than a scintilla of evidence in support thereof.”
In Ray v. Farmers' State Bank of Hart, 576 S.W.2d 607, 609 (Tex.1979), Judge Pope wrote, “The judgment of a trial court will not be set aside if there is any evidence of a probative nature to support it, and a court of civil appeals cannot substitute its findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court’s findings.”
Appellants contend in their first point that the trial court’s finding that the Smith County Commissioners Court substantially complied with the Open Meetings Law is against the great weight and preponderance of the evidence because the evidence demonstrates that the Commissioners Court failed to post the agenda for their meetings of August 24 and August 31, 1981, in a place readily accessible to the general public at all times for at least 72 hours preceding the scheduled meeting.
Appellants rely upon Sec. 3A(h) of Article 6252-17, TEX.REV.CIY.STAT.ANN.11 (Supp.1985), which provides in 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....
The record indicates that the agenda for meetings of the Commissioners Court of Smith County is usually posted on Friday preceding the meeting on Monday, and the agenda is posted on a bulletin board on the first floor of the County Courthouse. The doors to the first floor of the courthouse are locked between 7:00 and 8:30 p.m. on Friday nights and are not unlocked until about 6:00 or 6:30 a.m. Monday morning. The above procedure of posting notices on Friday for meetings on Monday was followed for both the August 3, 1981, meeting and the August 24, 1981, meeting.
The minutes of the Commissioners Court of the meeting of August 3, 1981, indicate that a request for a public hearing for the purpose of closing a portion of County Road # 431 as noted on attached plat was item 5 on the regular agenda. A freeholders’ petition to close a portion of Jim Hogg road dated August 3, 1981, and signed by some 39 persons was filed with the County Clerk and it was presented to the Commissioners Court. Commissioner Ammons testified the matter had been discussed by the Commissioners “over a long period of time,” and that two notices of the meeting to consider it were posted by the County Engineer and a man named Sid Emmons in the vicinity of the segment of the road to be closed, and that the petition was posted at three places for twenty days prior to the action of the Commissioners Court on August 24, 1981. The freeholders’ petition read as follows:
TO THE COMMISSIONERS’ COURT OF SMITH COUNTY, TEXAS:
*956The undersigned freeholders of Precinct 4 in Smith County, Texas, hereby petition the Commissioners’ Court to enter an order discontinuing and closing Jim Hogg Rd # 431 from a point 1,019 feet south of intersection of county road
# 471 and Jim Hogg Rd. # 431, and intersection of Jim Hogg Rd. # 431 and Ann Campbell Rd. # 492. The section to be closed is plotted with x’s on attached plat.
This application will be posted not later than August 3, 1981, at the Smith County Courthouse and at two (2) other public places in the vicinity of Jim Hogg Rd. # 431, and will remain posted for twenty (20) days.
Dated August 3, 1981.
The record indicates that the posting of the petition was considered by the Commissioners Court at the August 3, 1981, meeting which was open to the public. The record also discloses that the Commissioners had informally discussed the closing of the road several times but that formal action was taken by them only on August 24, 1981, after the posting of the freeholders’ petition on August 3, 1981.
I agree with the trial court finding that the Commissioners Court substantially complied with the provisions of the Open meetings Act, and that they did not abuse their discretion in the discontinuance of the segment of the road in issue here. I would hold that such findings by the trial court are not against the great weight and preponderance of the evidence.
In McConnell v. Alamo Heights Independent School District, 576 S.W.2d 470, 474 (Tex.Civ.App.—San Antonio 1978, writ ref'd n.r.e.), the court, in an opinion written after the effective date of the 1975 amendment of Sec. 3A(h) of art. 6252-17, held, “The law appears settled that the notice provisions of the Texas Open Meetings Act are subject to the substantial compliance rule.”
The McConnell court cited Santos v. Guerra, 570 S.W.2d 437 (Tex.Civ.App.—San Antonio 1978, writ ref’d n.r.e.), a prior case by that court, holding that the substantial compliance rule was applicable to meeting the requirements of the Open Meetings Act.
Common Cause v. The Metropolitan Transit Authority, 666 S.W.2d 610, 613 (Tex.App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.), was a summary judgment case involving the Texas Open Meetings Act. Appellant there filed suit for injunctive and declaratory relief to set aside a resolution of appellee’s board of directors authorizing its general manager to enter into a contract for railroad cars, alleging noncompliance with the Texas Open Meetings Act. The trial court granted the appellee’s motion for summary judgment. The question on appeal was whether appellee produced sufficient summary judgment evidence to prove that notice of its two meetings were given as required by art. 6252-17, Sec. 3A(h). The Court of Appeals reversed and remanded the case holding that even though the meeting of the board was held more than 72 hours after the notice was posted, “There were no facts adduced showing that the required notices were 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.)
The court in Common Cause further said, “We agree that the greater weight of Texas authority holds that only substantial compliance is required, [citing cases] But except in a rare case, the question of whether there was substantial compliance with the Act is a fact issue; and, in the absence of a waiver or an admission of the nonmovant, cannot be decided by summary judgment.” (Emphasis added.)
Holloway v. County of Matagorda, 667 S.W.2d 324, 329 (Tex.App.—Corpus Christi 1984), was a condemnation case in which appellants claimed that the condemnation proceeding was voidable “because of the failure of the County’s posted notice to meet the time and content requirements of the Open Meetings Act.” There was no dispute that the notice was posted at least 72 hours preceding the scheduled time of the meeting. The court disregarded appellant’s ar*957gument that the effective time of notice was substantially reduced because the courthouse where the notice was posted was closed on Saturday and Sunday, citing Lipscomb Independent School District v. County School Trustees of Lipscomb County, 498 S.W.2d 364 (Tex.Civ.App.—Amarillo 1973, writ ref’d n.r.e.), and held that appellants had presented no evidence that anyone who desired to attend the meeting failed to attend, nor presented any evidence that there was an intent to close the meeting to the public.
The Supreme Court on January 30, 1985, decided on Holloway v. County of Matagorda, 686 S.W.2d 101 (Tex.1985) and held that “complaints as to procedural irregularities in a condemnation case ‘must be preserved at the trial level by motion, exception, objection, plea in abatement, or some other vehicle,’ ” and since the Holloways never objected nor called the alleged lack-of proper notice to the trial court’s attention they waived their right to complain on appeal that the county failed to comply with the notice requirements of the Open Meetings Act.
The effect of the Supreme Court opinion was that the question of compliance with the Open Meetings Act was not before the Court of Appeals in Holloway, but the court then affirmed the judgment.
The foregoing cited cases seem to contain the latest expression of the Texas courts on the Open Meetings Act. The weight of authority seems to be that substantial compliance with the Open Meetings Act is sufficient. See Stelzer v. Huddleston, 526 S.W.2d 710, 713 (Tex.Civ.App.—Tyler 1975, writ dism’d). I would hold that the posting of the notice for 72 hours before the meeting of the Commissioners Court of Smith County, together with the freeholders’ petition which was posted for twenty-one days in three public places, two in the vicinity of the road to be closed, was substantial compliance with the Open Meetings Act and not against the great weight and preponderance of the evidence.
Appellants in their second, third, fourth and fifth points contend the finding of the trial court that the Commissioners Court substantially complied with the Open Meetings Act is against the great weight and preponderance of the evidence because the evidence demonstrates that (2) the Commissioners Court failed to consider or certify the Petition of Freeholders at any meeting of the Commissioners Court open to the public; (3) the Commissioners Court considered closing the subject portion of Jim Hogg road in discussions and meetings not open to the public; and (4) the Commissioners Court considered its agreement to deed the subject portion of Jim Hogg road to Tyler Pipe, and the compensation it would receive therefor, and reached that agreement in discussion and meetings not open to the public.
To hold that public officials such as County Commissioners and County Judges could not discuss informally among themselves matters which are pending or which may be pending before them would hamper them in carrying out their legal duties. “No principle of law is better settled than that acts of discretion and findings of fact on the part of public officers to which such power is confided, including Commissioners Courts, will not be reviewed on appeal.” Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, 269 (1922); Cameron County Good Government League v. Ramon, 619 S.W.2d 224, 230 (Tex.Civ.App.—Beaumont 1981, writ ref’d n.r.e.); Live Oak County v. Lower Nueces River Water Supply District, 446 S.W.2d 14, 22 (Tex.Civ.App.—Beaumont 1969, writ ref’d n.r.e.). I would overrule points two, three, four and five.
My brethren have held that the order of the commissioners court discontinuing the segment of the road was void. I disagree.
Article 6703, TEX.REV.CIV.STAT.ANN. (Vernon 1960), provided (until repealed, effective September 1, 1983):12
The commissioners court shall order the laying out and opening of public roads when necessary, and discontinue or alter any road whenever it shall be deemed expedient. ... No part of a *958public road shall be discontinued until a new road is first built connecting the parts not discontinued....
The new County Road and Bridge Act, effective September 1,1983, Article 6702-1, Section 2.002 (court authority) provides:
(a) The commissioners court shall:
(1) order that public roads be laid out, opened, discontinued, or altered when necessary except that:
(A) a public road may not be discontinued until a new road is ready to replace it;
The record discloses, and the plat set out herein demonstrates, that art. 6703 was complied with when the commissioners court altered or re-routed the road before the segment was discontinued, and the public was not prohibited from using the road, and art. 6705 was complied with by the freeholders’ application posted as required at least twenty days at the courthouse door and two public places in the vicinity of the route of the road.
Point of error seven reads as follows:
The District Court erred, in rendering a take-nothing judgment for Plaintiffs, in refusing Plaintiffs requested Finding of Fact No. 13, and requested Conclusions of Law No. 19 and 20, and in denying Plaintiff’s Motion to Modify Judgment because neither Defendant, Smith County, Texas, nor Defendant, Tyler Pipe Industries of Texas, Inc., have jurisdiction or authority to deny Plaintiffs access to the subject portion of Jim Hogg Road.
Appellant’s seventh point is multifarious. However, it basically complains that neither Smith County nor Tyler Pipe “have jurisdiction or authority to deny plaintiffs access to the subject portion of Jim Hogg Road.” Article 6703 and the new article 6702-1, Sec. 2.002 authorize the commissioners court to discontinue or alter public roads.
In the case of Parkey v. Archer County, 61 S.W.2d 175, 179 (Tex.Civ.App.—Fort Worth 1933, writ ref’d), the court said:
It is well settled that under the provisions of chapter 2, title 116, Rev. Statutes [Art. 6702, et seq.], the commissioners’ court may, upon their own initiative, order the laying out and opening of public roads when necessary and discontinue all or any roads when it shall be deemed expedient. Robison v. Whaley Farm Corporation, 120 Tex. 633, 37 S.W.(2d) 714; 21 Tex.Jur., § 43, pp. 568-9.
The majority relies upon Compton v. Thacker, 474 S.W.2d 570 (Tex.Civ.App.—Dallas 1971, writ ref’d n.r.e.), and Moore v. Commissioners Court of McCulloch County, 239 S.W.2d 119 (Tex.Civ.App.—Austin 1951, writ ref’d). The facts in Compton v. Thacker, were entirely different from the case at bar. In Compton one of the purposes of the road was access to abutting land, and the court there held that “the statutory power of the commissioners’ court to discontinue a county road by formal order is restricted to abandonment by the county of its maintenance as a public highway and does not include the power to deny its use to the owners of property situated on it.”
The Moore case was also a case involving the closing of a road. Neither Compton v. Thacker, nor the Moore case are applicable to the facts presented here. Those cases dealt with the closing of a road. This case deals only with the re-routing of a short segment of a county road. The result of the holding of the majority would be that any landowner on a road would be able to control the route of any public road and thereby usurp the authority of the county commissioners. Surely the Compton and Moore cases are not authority for such a result.
The majority opinion fails to distinguish the facts in the instant case. The record here discloses that there is no landowner on Jim Hogg road who is denied access to the road. The only change for any landowner traveling on road # 431 was that the traveling public would travel on road #471 on the north side of Tyler Pipe to reach Highway 69 rather than on the east and south side of Tyler Pipe to reach Highway. 69. Access to Highway 69 was not impaired; its route was simply altered, and no *959landowner was denied access to any place that he wished to go before the road was re-routed. Every landowner could use the re-routed road free from obstruction or hin-derance. There is no evidence of lack of access nor of hardship by any landowner or traveler.
If a commissioners court does not have authority to re-route a short segment of a road, when such action does not deny any landowner the same access for travel as before, then the statutes above quoted are meaningless. The statutes, both art. 6703 and the new article 6702-1, sec. 2.002, authorize the commissioners court to “alter any road whenever it shall be deemed expedient,” or “altered when necessary.” Under the record I find no merit in appellants’ point seven. No property right of appellants has been taken or denied.
I would affirm the judgment of the trial court.
*9601
. Articles cited are Texas Revised Civil Statutes Annotated (Vernon) unless otherwise indicated.
. All articles cited are Texas Revised Civil Statutes unless otherwise noted.