River Road Neighborhood Ass'n v. South Texas Sports, 04-84-00206-CV

• Decision Date: 05 March 1986
• Docket Number: No. 04-84-00206-CV,04-84-00206-CV
• Parties: 36 Ed. Law Rep. 498 RIVER ROAD NEIGHBORHOOD ASSOCIATION, et al., Appellants, v. SOUTH TEXAS SPORTS, et al., Appellees.
• Court: Texas Court of Appeals

Page 551

720 S.W.2d 551

36 Ed. Law Rep. 498

RIVER ROAD NEIGHBORHOOD ASSOCIATION, et al., Appellants, v. SOUTH TEXAS SPORTS, et al., Appellees.

No. 04-84-00206-CV.

Court of Appeals of Texas,

San Antonio.

March 5, 1986.

Rehearing Denied Dec. 10, 1986.

Harvey L. Hardy, Jackson C. Hubbard, Timothy Patton, Groce, Locke & Hebdon, San Antonio, for appellants.

Marynell Maloney, Maloney & Maloney, Anthony Nicholas, Manuel Lopez, Phil Hardberger, W.L. Matthews, Donald J. Walheim, Schulman, Walheim & Beck, San Antonio, for appellees.

Before CADENA, C.J., and BUTTS, and CANTU, JJ.

OPINION

CADENA, Chief Justice.

This is an appeal from an instructed verdict upholding the validity of a lease executed by defendant, San Antonio Independent School District (District), purporting to lease certain property owned by District consisting of Alamo Stadium and other tracts of land in the vicinity of the stadium, to defendant, South Texas Sports, Inc. (STS).

The suit challenging the validity of the lease was filed by (1) River Road Neighborhood Association (Association), a Texas non-profit corporation, ¹ whose members live in close proximity to Alamo Stadium and are residents within, and taxpayers of, the district; (2) ten individuals who reside within and pay taxes to, the District and the City of San Antonio; and (3) the City of San Antonio (City).

Plaintiffs, Association and the ten individuals, seek reversal of the judgment on grounds ² that (1) the lease is ultra vires in that it surrenders control over school property to a private corporation for private purposes for an "unconscionable term" of 50 years; (2) the lease is for an inadequate consideration since it deprives District of the right to collect rent unless it spend in excess of 20 million dollars in expanding the seating capacity of Alamo Stadium from approximately 22,000 to 62,000; (3) the lease instrument does not adequately describe the premises being leased; and (4) the lease was approved at a meeting of District's Board of Trustees which was held in violation of the Open Meetings Act, TEX.REV.CIV.STAT.ANN. art. 6252-17 (Vernon Supp.1986). City challenges the lease on grounds that it violates the covenants, conditions and restrictions contained in the conveyance by which the land on which Alamo Stadium is located was conveyed by City to District and that it is ultra vires.

Alamo Stadium has been primarily used as the site for football games and other athletic contests involving schools of the District. STS holds a franchise from the United States Football League and operates a professional football team known as the San Antonio Gunslingers, which plays its home games at the stadium.

Execution of the lease was approved by District's Board of Trustees at an emergency meeting held on May 31, 1983. The notice of the May 31 meeting was posted less than 72 hours before the meeting was convened. Association and the individual plaintiffs contend that the lease must be declared void because of lack of compliance with the notice provisions of the Open Meetings Act.

The following provisions of the statute are pertinent:

Sec. 3A. (a) Written notice of the date, hour, place, and subject of each meeting held by a governmental body shall be given before the meeting as prescribed by this section, and any action taken by a governmental body at a meeting on a subject which was not stated on the agenda in the notice posted for such meeting is voidable....

* * *

* * *

(e) A school district shall have a notice posted on a bulletin board located at a place convenient to the public in its central administrative office and shall give notice by telephone or telegraph to any news media requesting such notice and consenting to pay any and all expenses incurred by the school district in providing special notice.

* * *

* * *

(h) 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,.... In case of emergency or urgent public necessity, which shall be expressed in the notice, it shall be sufficient if the notice is posted two hours before the meeting is convened.

TEX.CIV.STAT.ANN. art. 6252-17, § 3A (Vernon Supp.1986).

We reject the contention that the notice is insufficient because it fails to describe the nature of the emergency which excused compliance with the requirement of 72 hours' notice. The statute simply provides that notice of less than 72 hours is sufficient "in case of an emergency or urgent public necessity, which shall be stated in the notice...." A fair construction of the language yields the conclusion that all that is required is that the notice state that the meeting is required by an emergency or urgent public necessity, thus explaining the failure to give the 72 hours' notice which would otherwise be required. There is no requirement that the nature of the emergency be set out in the notice.

The statute requires that the notice state not only the date, hour and place of the meeting, but also the "subject" of the meeting. We sustain the contention that the notice did not adequately state the subject or purpose of the meeting, since it merely stated that the lease of Alamo Stadium would be "discussed" and gave no indication that any action would be taken.

Defendants, asserting that substantial, rather than literal, compliance with the notice provisions is all that is required, argue that notice that there would be discussion of the lease was sufficient to alert readers of the notice that action approving the lease might be taken at the meeting. Defendant's argument is based on several cases, some of which indicate that substantial compliance is sufficient.

In Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 646 (Tex.1975), the notice stated that the governing body would consider matters concerning the operation of the River Authority, "including the ratification of the prior action of the Board taken on October 19, 1972, in response [sic] to changes in electric power rates...." The Supreme Court, while noting that the notice was not as clear as it might be, concluded that "it would alert a reader to the fact that some action would be considered with respect to charges for electric power...." Id. There is no reason to quarrel with this conclusion, since the recitation concerning "ratification" of the prior action of the Board clearly referred to action, rather than mere discussion. The opinion nowhere states that substantial compliance with the notice provisions is all that is required.

In Santos v. Guerra, 570 S.W.2d 437, 439 (Tex.Civ.App.--San Antonio 1978, writ ref'd n.r.e.), the notice stated that the purpose of the meeting was to "Discuss Road and Budget Department personnel matters (executive session, if needed)." Id. at 438. At the meeting the Commissioner's Court terminated the employment of Santos. This Court, after observing that the notice "was not as detailed as it might have been," concluded that "under all of the circumstances present in this case, it would alert a reader to the fact that some action would be taken concerning appellant's job performance," and that "under the facts of this case, substantial compliance with our Open Meetings Law was established as a matter of law." Id. at 440. It is difficult to understand how notice that "Road and Budget Department personnel matters" would be discussed can fairly be said to be sufficient to alert a particular employee "to the fact that some action would be taken concerning [that particular employee's] job performance." Id. Under such a "substantial compliance" rule, notice that the governing body would "discuss" the budget would be sufficient to alert all employees of the governmental unit that their employment might be terminated, since there is a clear relationship between authorized expenditures and number of authorized employees.

The Santos opinion makes it clear that the conclusion is based on "all of the circumstances present" in that case, and that substantial compliance was established "under the facts" of that case. The "circumstances" and "facts" mentioned in the opinion were that Santos attended, and actively participated, in the meeting and that several persons attended and spoke in his favor. Under these facts and circumstances it is clear that the notice was sufficient to alert Santos and others that he might be fired.

McConnell v. Alamo Heights Independent School District, 576 S.W.2d 470 (Tex.Civ.App.--San Antonio 1978, writ ref'd n.r.e), involved the firing of a school teacher. The teacher's complaint concerned the sufficiency of the notice of a meeting held on January 26. As pointed out in this Court's opinion, the teacher's employment was not terminated at that meeting, so that the sufficiency of the notice was irrelevant and the discussion of its sufficiency is dictum.

In Burton v. Ferrill, 531 S.W.2d 197, 200 (Tex.Civ.App.--Eastland 1975, writ dism'd), the notice stated that the purpose of the meeting was "organizational procedures in order calling confirmation and tax election." The Court merely said that the notice "would alert a person that action would be considered with respect to calling an election." Id. The conclusion seems correct, since the notice referred to provisions in an order calling an election. In Lipscomb v. Independent School District v. County School Trustees, 498 S.W.2d 364, 366 (Tex.Civ.App.--Amarillo 1973, writ ref'd n.r.e.) the notice, as set out in the opinion, represented a literal compliance with the notice requirements.

The opinion in Aguilar v. City of El Paso, 594 S.W.2d 191, 194 (Tex.Civ.App.--El Paso 1980, writ ref'd n.r.e.), does not contain the wording of the notice. The Court merely said that the City posted its agenda "indicating the recommendation that the City enter into" the contract in question, adding that there was no violation because the statute merely required that the City "post notice...