Opinion
14-23-00617-CV
12-17-2024
WEBB COUNTY, TEXAS, Appellant v. CYNTHIA MARES, Appellee
On Appeal from the 111th District Court Webb County, Texas Trial Court Cause No. 2016-CVQ-002952-D2
Panel consists of Jewell, Bourliot, and Poissant Justices.
MAJORITY OPINION
Margaret "Meg" Poissant, Justice.
Appellant Webb County ("the County") appeals a final judgment awarded to appellee Cynthia Mares ("Mares") for the County's violation of the Texas Open Meetings Act ("TOMA"). In three issues that we have reorganized as four, the County argues that (1) the mootness doctrine deprives the trial court of subject-matter jurisdiction; (2) the agenda for the Commissioners Court meeting provided adequate notice under TOMA; (3) the trial court lacked subject-matter jurisdiction to award money damages to Mares for back pay and lost retirement benefits; and (4) the trial court erroneously awarded attorney's fees and costs to Mares. We reverse the part of the trial court's judgment awarding Mares back pay and lost retirement benefits and render judgment that she take nothing on her claim for monetary damages. We affirm the remainder of the judgment.
The Supreme Court of Texas ordered the Court of Appeals for the Fourth District of Texas to transfer this case (trial cause number 04-23-00724-CV) to this court. Misc. Docket No. 23-9034 (Tex. June 16, 2023); see Tex. Gov't Code Ann. §§ 73.001, .002. Because of the transfer, we decide the case in accordance with the precedent of the transferor court under principles of stare decisis if our decision otherwise would have been inconsistent with the transferor court's precedent. See Tex. R. App. 41.3.
I. Background
The Webb County Commissioners' Court voted to split its Administrative Services Department into two departments, Human Resources and Risk Management, during discussion of Item 49 on the agenda of the September 26, 2016, Commissioners Court meeting. With this vote, it simultaneously moved Mares, the director of the Administrative Services Department, to the newly-formed Human Resources Department and reduced her annual salary from $105,000 to $75,000.
The public notice for Item 49 of the sixty-item agenda stated:
49. Discussion and possible action to adopt the county budget for fiscal year 2016-2017 pursuant to Chapter 11 of the Texas Local Government Code. The Court may make any modifications to the proposed budget that it considers warranted by law and required by the interest of the taxpayers by majority vote.
49. (A) Discussion and possible action to itemize and set fees by Order as part of the Fiscal Year 2016-2017 budget preparation process for the county's floodplain management program including by not limited to determinations, development permits, certifications and inspections
as prescribed by the provisions of Section 16.324, Texas Water Code. Staff recommends keeping the same fee schedule approved with the Fiscal Year 2015-2016 budget.
Soon after the Commissioners Court meeting, Mares sued the County, alleging Item 49 gave inadequate notice under TOMA that the Administrative Services Department might be restructured into two departments, her position changed, and her salary reduced.
On August 28, 2017, the County terminated Mares's employment. Thereafter, Mares amended her petition to add claims for age discrimination, First Amendment retaliation under 42 U.S.C. § 1983, retaliation under the Texas Labor Code, and an alternative claim under the Texas Whistleblower Act.
The County removed the lawsuit to federal court. The federal district court granted the County's motion for summary judgment on all of Mares's claims except under TOMA and the Texas Whistleblower Act, see Mares v. Tex. Webb Cnty, No. 5:18-CV-121, 2020 WL 619902, at *4-5 (S.D. Tex. Feb. 10, 2020), and remanded the remaining claims to state court.
On remand, Mares dropped her whistleblower claim and proceeded only on her TOMA claim. The trial court granted summary judgment to Mares on her TOMA claim, denied the County's cross-motion for summary judgment, granted Mares's motion for attorney's fees and costs, and entered a final judgment awarding Mares $39,000.00 in monetary damages for back pay and lost retirement benefits and $69,650.00 in attorney's fees and costs.
II. Mootness Doctrine
In its first issue, the County contends that the mootness doctrine deprived the trial court of subject-matter jurisdiction because there was no longer an existing controversy between the parties because Mares (1) did not seek immediate relief after filing her lawsuit through either mandamus or injunction; (2) was terminated from employment in August 2017; and (3) did not prosecute her TOMA claim for six-and-a-half years.
The mootness doctrine limits courts to deciding cases in which an actual controversy exists. F.D.I.C. v. Nueces Cnty., 886 S.W.2d 766, 767 (Tex. 1994) (citing Camarena v. Tex. Emp. Comm'n, 754 S.W.2d 149, 151 (Tex. 1988)). A controversy "must exist between the parties at every stage of the legal proceedings, including the appeal." Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). Mootness implicates subject-matter jurisdiction, and a court is prohibited from deciding a controversy that is moot. Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 634 (Tex. 2021). A matter becomes moot when "(1) a justiciable controversy no longer exists between the parties, (2) the parties no longer have a legally cognizable interest in the case's outcome, (3) the court can no longer grant the requested relief or otherwise affect the parties' rights or interests, or (4) any decision would constitute an impermissible advisory opinion." Id. at 634-35. "To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute." Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995).
The County bases its justiciability argument on Cornyn v. City of Garland, 994 S.W.2d 258, 267 (Tex. App.-Austin 1999, no pet.). In Cornyn, the court concluded that a TOMA claim about inadequacy of past city council notices was moot and that claims as to future notices, the content of which had not been composed or posted, required an advisory opinion. Id. at 266-67. Other courts, including this one, have since arrived at different conclusions regarding the mootness of TOMA violations for prior notices. See Kessling v. Friendswood Indep. Sch. Dist., 302 S.W.3d 373, 381 (Tex. App.-Houston [14th Dist.] 2009, pet. denied); City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469-70 (Tex. App.-Dallas 2007, no pet.). As we stated in Kessling, we do not agree that a TOMA violation is rendered moot simply because it occurred in the past. See Kessling, 302 S.W.3d at 381.
Further, the record does not support the County's contention that Mares failed to seek an immediate remedy. As the County acknowledges, Mares filed her TOMA claim on November 18, 2016, fifty-six days after the notice in question. See also Mares, 2020 WL 619902, at *2 (noting that Mares's original petition included an allegation that the County violated TOMA). As to the County's argument that Mares failed to prosecute her TOMA claim for six-and-a-half years, the County does not support its argument with citation to the record. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."). Here, the clerk's record includes a "case summary" from the trial court that shows fairly continuous activity in the case, including discovery, recusal of an earlier trial judge, motion practice, removal to and remand from federal court, amended pleadings, and a joint motion for continuance of a trial setting. Other than passage of time, the record does not establish Mares's failure to prosecute her claims.
We overrule the County's first issue.
III. Violation of TOMA
In its second issue, the County contends the trial court erroneously determined there was inadequate notice of the subject of the Commissioners' Court meeting in which the Administrative Services Department was split into two departments and Mares was re-assigned to one of the departments at a lesser salary. The County argues that agenda Item 49 provided sufficient notice to make any changes to the budget and that changes to Mares's position and salary were part of the budget process.
A. Notice Under TOMA
TOMA is intended to provide public access to and increase public knowledge of governmental decision making. Tex. State Bd. of Pub. Accountancy v. Bass, 366 S.W.3d 751, 759 (Tex. App.-Austin 2012, no pet.). It requires that "[e]very regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter." Tex. Loc. Gov't Code Ann. § 551.002. TOMA's purpose is to provide openness at every stage of a governmental body's deliberations. City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991). Under TOMA, "[a] governmental body shall give written notice of the date, hour, place, and subject of each meeting held by the governmental body." Tex. Loc. Gov't Code Ann. § 551.041.
Generally, a notice is sufficient under TOMA if it informs the reader that "some action" will be considered with regard to the topic. Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975). "A notice need not provide exacting detail of all issues to be decided." Burks v. Yarbrough, 157 S.W.3d 876, 883 (Tex. App.-Houston [14th Dist.] 2005, no pet.). "As long as a reader is alerted to the topic for consideration, it is not necessary to state all of the consequences which may flow from consideration of the topic." Cox Enters., Inc. v. Bd. of Trustees, 706 S.W.2d 956, 958 (Tex. 1986). While "general notice in certain cases is substantial compliance even though the notice is not as specific as it could be," the Supreme Court admonishes that "less than full disclosure is not substantial compliance." Cox Enters., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956, 959-60 (Tex. 1986). If the contents of a notice are undisputed, then its adequacy is a question of law. Burks v. Yarbrough, 157 S.W.3d 876, 884 (Tex. App.-Houston [14th Dist.] 2005, no pet.); Weatherford v. City of San Marcos, 157 S.W.3d 473, 486 (Tex. App.-Austin 2004, pet. denied).
B. Analysis
To determine whether the County substantially complied with TOMA, we look to whether the notice fairly identifies the meeting and "is sufficiently descriptive to alert a reader that a particular subject will be addressed." Burks v. Yarbrough, 157 S.W.3d 876, 883 (Tex. App.-Houston [14th Dist.] 2005, no pet.). In evaluating "substantial compliance" with the notice requirements of the Act, we compare the content of the notice with the action taken at the meeting. City of Austin v. Lake Austin Collective, Inc., No. 14-18-00068-CV, 2019 WL 6317337, at *2 (Tex. App.-Houston [14th Dist.] Nov. 19, 2019, no pet.) (mem. op.) (concluding that notice fell short of full disclosure because a reader would not have any inkling as to key topics to be addressed at the meeting concerning the ordinance).
Conducting such a comparison in this case reveals that the County's notice is inadequate. Agenda Item 49 discloses "discussion," "possible action to adopt," and the possibility of modifications to the county budget. But agenda Item 49 entirely omits restructuring of the Administrative Services Department. When other job descriptions were changed in the meeting, the County also gave notice of the changes. For example, Items 35 and 45 gave notice of changes in the job descriptions for custodian, building maintenance worker, and maintenance technician. The minutes from the Commissioners Court meeting also show that for Item 49, the commissioners proposed and voted on twelve changes to the budget, five of which involved moving job "slots" to different offices or departments. The only department divided into two new departments during the meeting was the Administrative Services Department. Further, Mares was the only person affected who was identified by name and called to the podium while Judge Tijerina moved to split the department and reduce Mares's salary.
For instance, Item 35 stated:
Discussion and possible action to modify the job description for Slot #2362 (Custodian) and Slot #2425 (Building Maintenance Worker) and approve the posting and filling of said slots. If approved by Commissioners Court, modification for job descriptions will be taken to Civil Service for certification.
Issue: Modify minimum qualifications. High school diploma or GED from an accredited institution preferred or 1-2 years experience.
Solution: To approve the job description change.
Result: Proceed with presenting changes to the Webb County Civil Service Commission.
The County argues that the action taken at the meeting falls under its authority for budget preparation, governed by subchapter 111(C) of the Local Government Code. See Tex. Local Gov't Code Ann. §§ 111.063, 111.067. Under these statutes, the itemized, proposed budget is filed with the Webb County Clerk and made available for public inspection. Id. §§ 111.063, 111.066. Here, the proposed budget is not included in the summary-judgment evidence, and there is thus no evidence it set forth restructuring of the Administrative Services Department. The County also argues the Commissioners Court is empowered by statute to make any changes in the proposed budget that it considers warranted by the facts and the law and required by the interest of the taxpayers. See Tex. Local Gov't Code Ann. §§ 111.039(b); 111.068(b). This budgeting power is not unfettered, however. Cf. Henry v. Sullivan, 499 S.W.3d 545, 553 n.7 (Tex. App.- Houston [14th Dist.] 2016, pet. denied) (addressing district court's general supervisory control when commissioners court fails to perform a mandatory act, performs an unauthorized act, or abuses its discretion; and noting the commissioners court does not have absolute discretion in its budgetary decisions);
cf. also Hinojosa v. Tarrant Cnty., No. 4:08-CV-315-A, 2009 WL 1309218, at *1- 2 (N.D. Tex. May 5, 2009) (mem. op. & order) (describing creation or elimination of existing job positions within county government's budget process through multiple steps before advancing to commissioners court for its "final decision-making authority to adopt a budget that may, among other things, create certain new positions or eliminate certain existing positions").
Citing Aslin v. Coryell County, No. 10-19-00006-CV, 2021 WL 2252669, at *4 (Tex. App.-Waco May 26, 202, no pet.) (mem. op.), the County argues that an amendment to the county budget can be used to eliminate a director's position. In Aslin, the commissioners court voted to defund the human resources department, which had the consequence of eliminating the plaintiff's job position. Id. at * 1. Unlike Aslin, the Commissioners Court did not defund the Administrative Services Department. Further, the plaintiff in Aslin did not complain about inadequate notice provided by the agenda, and the Aslin court specifically stated that "the amendment to the budget that executed this decision was properly noticed and decided in open session." Id. at *1. Rather, the Aslin plaintiff complained about lack of public discussion, contending discussion occurred either in a closed executive session or in an illegal closed meeting. See id. at *3.
Our comparison of the content of the County's notice with the action taken by the Commissioners Court shows that the notice does not provide the full disclosure necessary to comply with the requisites of TOMA. A reader would not have any inkling as to the substance of the actions to be taken by the Commissioners Court in the restructuring of the Administrative Services Department based on Item 49 of the Agenda. See Lake Austin Collective, 2019 WL 6317337, at *2; see also Parr v. State, 743 S.W.2d 268, 273 (Tex. App.-San Antonio 1987, writ denied) (holding that "the generalized label, 'budget,' falls short of an adequate notice that a tax levy would be considered"). The notice failed to address the topics under consideration-the structural change to the department and the proposed salary reduction of Mares-and deprives the reader of adequate notice under TOMA. See Cox, 706 S.W.2d at 959-60. We overrule the County's second issue.
IV. Money Damages
In its third issue, the County argues that governmental immunity precludes Mares's claim for declaratory judgment. Mares sought back pay and lost retirement benefits in her third amended petition's claim for declaratory judgment. The County then asserted governmental immunity in a renewed plea to the jurisdiction when Mares submitted proposed orders to the trial court that awarded her back pay and benefits. The County argued that the Legislature has not waived immunity for declaratory judgment claims under TOMA. In its final judgment, the trial court ordered $34,500.00 in backpay and $4,500.00 in lost retirement benefits.
In her motion for summary judgment, Mares argued her request for back pay and benefits in conjunction with her mandamus claim. However, a trial court's judgment must conform to the pleadings. Tex.R.Civ.P. 301.
Governmental immunity deprives a trial court of subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Governmental immunity protects political subdivisions of the State, including counties, cities, and school districts. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003). Under the doctrine of governmental immunity, a unit of government may not be sued without the express consent of the legislature. See City of Houston v. Houston Firefighters' Relief & Retirement Fund, 196 S.W.3d 271, 277 (Tex. App.-Houston [1st Dist.] 2006, no pet.).
In Town of Shady Shores v. Swanson, the Texas Supreme Court made clear that TOMA "does not waive governmental immunity with respect to declaratory judgment claims." 590 S.W.3d 544, 552 (Tex. 2019). While the Legislature has expressly authorized a suit for declaratory judgment against the government in other statutes, it has not done so for TOMA. Id. at 554. Instead, TOMA specifically authorizes an action by mandamus or injunction. Tex. Gov't Code Ann. § 551.142(a). Thus, TOMA's "clear and unambiguous waiver of immunity does not extend to suits for declaratory relief." Swanson, 590 S.W.3d at 554. In her petition, Mares sought back pay and lost retirement benefits under a claim for declaratory relief. Because such declaratory relief is not authorized under TOMA, we conclude the trial court erred in awarding monetary damages for this claim.
Mares nonetheless argues that monetary damages may be assessed through injunction or mandamus against a government body that violates TOMA, citing Ferris v. Tex. Bd. Of Chiropractic Exam'rs, 808 S.W.2d 514, 516 (Tex. App.- Austin 1991, writ denied). Ferris allowed injunctive relief in the form of reinstatement, back pay, and benefits for violation of TOMA. Id.; see also Piazza v. City of Granger, 909 S.W.2d 529, 534 (Tex. App.-Austin 1995, no pet.).
However, Ferris and Piazza pre-date the Texas Supreme Court's decision in Swanson. In Swanson, the court clarified that mandamus or injunction provides a mechanism to "allow[] an interested person to seek an order to compel action, an order to prevent action or threatened action, or both if necessary" for violation of TOMA. Swanson, 590 S.W.3d at 554. Left unchallenged in Swanson was the lower court's analysis that back pay for work not actually performed constitutes money damages, for which TOMA does not waive immunity. Town of Sandy Shores v. Swanson, 544 S.W.3d 426, 438 (Tex. App.-Fort Worth 2018), rev'd in part on other grounds, 590 S.W.3d 544 (Tex. 2019); see also Carroll v. City of Jefferson, No. 2:21-CV-00392-RSP, 2023 WL 7185563, at *3 (E.D. Tex. Nov. 1, 2023) (order) (conducting an Erie guess in the absence of a code provision or Texas Supreme Court case directly on point and concluding that "'injunctive relief' authorized by TOMA does not include back pay"); cf. City of Round Rock v. Whiteaker, 241 S.W.3d 609, 634-35, 637 (Tex. App.-Austin 2007, pet. denied) (concluding that injunctive and mandamus causes of action for back pay and back benefits after employee was wrongfully prevented from working for the governmental employer was a claim for money damages that implicates governmental immunity). Governmental immunity serves to protect governmental units from lawsuits for money damages. See Houston Firefighters' Relief & Retirement Fund, 196 S.W.3d at 277. Because the intended beneficiaries of TOMA are not individual citizens, but members of the interested public, City of San Antonio, 820 S.W.2d at 765, it is consistent that governmental immunity precludes a suit for money damages under TOMA whether couched as declaratory, injunctive, or mandamus claims.
We conclude that TOMA does not waive immunity for a mandamus claim for back pay and lost retirement benefits and that Mares cannot recover monetary damages on that basis. See Carowest Land, Ltd. v. City of New Braunfels, 615 S.W.3d 156, 158 (Tex. 2020) (stating TOMA confines the Legislature's waiver of immunity to those forms of relief that the statute expressly affords). The trial court erred in awarding Mares $30,000.00 in back pay and $4,500.00 in lost retirement benefits in its order of mandamus. We sustain the County's third issue, reverse that portion of the trial court's judgment that awarded monetary damages to Mares, and render judgment that Mares take nothing for her claim for back pay and lost retirement benefits.
V. Attorney's Fees & Costs
In its fourth issue, the County contends that the trial court erred in awarding Mares attorney's fees and costs.
A. Discretionary Fees Under TOMA
Texas law does not allow recovery of attorney's fees unless authorized by statute or contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006). TOMA permits the trial court to assess costs of litigation and reasonable attorney's fees incurred by a party who substantially prevails in an action brought under the statute. Tex. Gov't Code Ann. § 551.142(b); Swate v. Medina Cmty. Hosp., 966 S.W.2d 693, 701 (Tex. App.-San Antonio 1998, pet. denied). Because the decision to grant or deny attorney's fees under TOMA is within the trial court's discretion, we will not reverse absent an abuse of discretion. See Spiller v. Tex. Dep't of Ins., 949 S.W.2d 548, 552 (Tex. App.-Austin 1997, pet. denied). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without regard to guiding legal principles. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012).
The County's opposition to the award of attorney's fees reiterates its prior argument that there was no violation of TOMA. As discussed above, we have concluded that the trial court correctly held that Item 49 provided inadequate notice under subsection (a) of TOMA. We do not agree with the County that the trial court abused its discretion in awarding attorney's fees and costs to Mares for her TOMA claim.
B. Segregation of Attorney's Fees
The County also argues that the trial court erred in awarding attorney's fees because Mares did not segregate the attorney's fees attributable to her TOMA claim versus other claims and submitted block billing. In a hearing on the motion for attorney's fees, the trial court overruled the County's objections about alleged lack of segregation.
A claimant is required to segregate attorney's fees between claims for which they are recoverable and claims for which they are not. Tony Gullo Motors, 212 S.W.3d at 311. Mares's motion for attorney's fees and costs clearly states that her attorney spent 165.25 hours over six-and-a-half years, at $400 an hour, to prove that the County provided inadequate notice under TOMA. Her attorney's affidavit and billing, attached as evidence in support of the motion, are consistent with this assertion. Mares's attorney also specifically excluded 114.75 hours of time spent on Mares's other claims, which Mares's attorney denoted as "NO CHARGE" on his fee bills. The bulk of the billing attributed to Mares's TOMA claim covers time that this claim was the only pleaded or pending claim. The billing listed the entirety of federal court proceedings as "NO CHARGE," although federal court motion practice included the County's first motion for summary judgment on the TOMA claim, which the federal district court denied. See Mares, 2020 WL 619902, at *9. We disagree that Mares failed to segregate attorney's fees attributable to her TOMA claim. We overrule the County's fourth issue.
Furthermore, we note that the County has not identified instances from the attorney's fee bills that it argues should have been segregated. See Cooper v. Cochran, 288 S.W.3d 522, 537 (Tex. App.-Dallas 2009, no pet.) (concluding that appellant who failed "to point to any specific instances of legal services . . . for which segregation would be appropriate" did not demonstrate error on appeal).
VI. Conclusion
We overrule the County's first, second, and fourth issues and affirm those portions of the trial court's judgment granting mandamus for the County's violation of TOMA due to inadequate notice and awarding Mares attorney's fees and costs. We sustain the County's third issue because TOMA does not waive governmental immunity as to Mares's claim for monetary damages. We reverse that portion of the trial court's judgment awarding $34,500.00 in back pay and $4,500.00 in lost retirement benefits, and we render judgment that Mares take nothing for her claim for back pay and lost retirement benefits. We affirm the remainder of the trial court's judgment.
DISSENTING OPINION
Kevin Jewell Justice
I respectfully dissent from the majority opinion and the court's judgment as I conclude that we may not reach the merits of this appeal because the trial court's judgment granted unauthorized relief and is therefore void.
The trial court signed a final judgment on July 10, 2023. At that time, the only live claims at issue in Cynthia Mares's Third Amended Petition were for mandamus and declaratory relief based on the Webb County Commissioners Court's alleged violation of the Texas Open Meetings Act (the "Act"). See Tex. Gov't Code §§ 551.041, 551.141-.142. Mares alleged that, pursuant to a public notice preceding a September 26, 2016 commissioners court meeting, the commissioners court notified the public that it would discuss and potentially adopt a county budget for the 2016-2017 fiscal year and that the commissioners court may make any modifications to the proposed budget that it considered warranted by law and required by the interests of the taxpayers. During that meeting, the commissioners court voted to "split" or reorganize the county's Administrative Services Department into two separate departments, namely the Risk Management Department and the Human Resources Department, as a modification to the proposed budget. Mares, who was the director of the Administrative Services Department (at a $105,000 annual salary), would, as a result of the reorganization, become director of the Human Resources Department (at a $75,000 annual salary). Mares alleged that the pre-meeting agenda provided no notice that her duties or salary would be evaluated and potentially changed.
In her claim for mandamus relief, Mares requested that the trial court reverse the commissioners court's decision to split the Administrative Services Department due to the lack of adequate notice under the Act. In her declaratory judgment claim, Mares requested that the court declare that Webb County violated the Act because it failed to provide adequate notice of the challenged decision, and she requested reinstatement, back pay, costs, and attorneys' fees.
The parties filed cross-motions for summary judgment. The trial court granted Mares's motion and denied Webb County's motion.
In its judgment, the court:
• ordered that Mares "recover" mandamus that Webb County violated the Act by not providing notice of the subject of its September 26,
2016 government action to split the Administrative Services Department;
• found that Mares brought her action in good faith;
• found that Webb County's conduct had no reasonable basis in law, because the budget notice was not adequately tailored to meaningfully inform the public regarding the proposals intended for discussion; and that Mares's "demotion" was a "disguised personnel action and punitive";
• declared Mares the prevailing party and awarded backpay, lost retirement, reasonable and necessary attorneys' fees, and costs; and
• stated the judgment disposed of all claims and all parties and is appealable.
As the majority opinion correctly notes, the Supreme Court of Texas has held that the Act does not waive governmental immunity from suit for declaratory judgment claims. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 554 (Tex. 2019). Although the Act contains an express waiver of governmental immunity, that waiver extends only to claims for mandamus or injunctive relief. Id.
Important to this case is the nature of mandamus relief. A trial court judgment granting mandamus relief would consist of an order compelling action, or an order preventing action or threatened action. See id. (citing Campbell v. Wilder, 487 S.W.3d 146, 153-54 (Tex. 2016) (describing the difference between mandamus and injunction); Burks v. Yarbrough, 157 S.W.3d 876, 878-79 (Tex. App.-Houston [14th Dist.] 2005, no pet.)). When, as here, a judgment is unambiguous, it is our duty to construe it in light of the literal meaning of the language used. See Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003). That is, we interpret the judgment according to its substantive language. See Redwine v. Peckinpaugh, 535 S.W.3d 44, 48 (Tex. App.-Tyler 2017, no pet.).
Although the word "mandamus" appears in the judgment, the substantive and literal words of the judgment do not actually grant any mandamus relief. The judgment does not, for example, compel the county or the commissioners court to reverse its September 26, 2016 decision splitting the Administrative Department into two separate departments. It merely declares that the county violated the Act by failing to provide adequate notice of the subject at issue discussed during the September 26, 2016 meeting. In my view, the judgment in substance grants only declaratory relief and money damages; it does not grant mandamus relief.
As Swanson makes clear, the trial court lacked jurisdiction to grant declaratory or monetary relief because the county's immunity from suit has not been waived for such relief in the context of an Open Meetings Act lawsuit. Swanson, 590 S.W.3d at 554. Thus, the only relief the trial court granted was relief it was not authorized to grant.
While my colleagues in the majority correctly note that the monetary damages must be reversed, it is my view that the entire judgment is void.
When a trial court has no authority or jurisdiction to sign a particular judgment, the judgment is void. See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005); Custom Corps., Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 838 (Tex. App.-Houston [14th Dist.] 2006, no pet.). Webb County does not challenge the judgment on this ground, but we may not ignore questions of jurisdiction simply because the parties do not raise the issue. See Walker Sand, Inc. v. Baytown Asphalt Materials, Ltd., 95 S.W.3d 511, 514 (Tex. App.-Houston [1st Dist.] 2002, no pet.). A court of appeals faced with a void judgment has no jurisdiction to consider the merits of the appeal. See Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (per curiam); State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam). Rather, we must declare the judgment void and make appropriate orders based on that determination, which usually involves dismissing the appeal. See Freedom Commc'ns, 372 S.W.3d at 623; Owens, 907 S.W.2d at 486; Waite v. Waite, 150 S.W.3d 797, 800 (Tex. App.- Houston [14th Dist.] 2004, pet. denied). We should vacate the judgment and dismiss the appeal. Tex.R.App.P. 43.2(e).