Rivera v. City of Laredo

• Decision Date: 16 April 1997
• Docket Number: No. 04-96-00058-CV,04-96-00058-CV
• Citation: 948 S.W.2d 787
• Parties: Inez P. RIVERA; Gaspar Ambrose; E.J. Laurel; and The Laredo Police Officers Association, Appellants, v. CITY OF LAREDO, Appellee.
• Court: Texas Court of Appeals

Page 787

948 S.W.2d 787

Inez P. RIVERA; Gaspar Ambrose; E.J. Laurel; and The

Laredo Police Officers Association, Appellants, v. CITY OF LAREDO, Appellee.

No. 04-96-00058-CV.

Court of Appeals of Texas,

San Antonio.

April 16, 1997.

Rehearing Overruled May 16, 1997.

Richard J. Gonzalez, Laredo, for Appellants.

Fausto Sosa, City Attorney, Jerry Bruce Cain, Acting City Attorney, Laredo, for Appellee.

Before STONE, GREEN and ANGELINI, JJ.

GREEN, Justice.

OPINION

Appellants brought suit against the City of Laredo (the City) seeking mandamus, injunctive and declaratory relief. They claimed that the Laredo City Council selected a police chief in violation of the Texas Open Meetings Act. On appeal, Appellants challenge the trial court's granting the City's motion for summary judgment and the court's denying their motion for summary judgment.

Facts

In October of 1991, E.J. Laurel resigned as chief of police of the City of Laredo. After Laurel's resignation, the City began the selection process for a new police chief. On March 23, 1992, the city council met in open session pursuant to public notice posted on March 20, 1992. The notice included the agenda for the session, specifying that "personnel matters" would be discussed in executive session. ¹ At the meeting, the city manager moved to meet in executive session, which the council did. After the executive session, the mayor announced that no formal action had been taken.

On May 4, 1992, the city council met again in open session after it posted notice on May 1, 1992. The notice contained a statement that the city manager requested an executive session to discuss the selection of a police chief. The minutes from the May 4th open session indicate that the city manager moved to go into executive session to discuss appointing a new police chief. After the executive session, the mayor announced that no formal action had been taken. A council member then moved to recess until May 6, 1992, which the council approved by vote. After approving the recess, the council continued discussing other business matters. When the council was called from the "recess" on May 6, 1992, the council members met in executive session to discuss the selection of a police chief. The minutes indicate that the mayor was not present at the time the meeting was called from recess, but the minutes do state that he came in at 1:15 p.m., which occurred either at the time the council was voting to go into executive session or during the executive session itself. After the executive session, the mayor announced in open session that no formal action had been taken. The city manager then nominated J.L. Martinez for chief of police, and the city council, by majority vote, approved the city manager's nominee.

On June 9, 1993, Police Chief Martinez suspended police officer Inez P. Rivera without pay based upon five counts of official misconduct. Rivera appealed his suspension to a third party hearing examiner, who sustained the indefinite suspension. Rivera then brought the present suit in district court seeking mandamus, injunctive and declaratory relief against the City of Laredo. Gaspar Ambrose, E.J. Laurel, and The Laredo Police Officers Association later joined Rivera's suit. In their petition, the plaintiffs challenged the appointment of Martinez as police chief. They claimed that the City violated the Open Meetings Act in appointing Martinez and petitioned the court to declare the appointment and any disciplinary actions taken by Martinez as police chief void. They also asked the trial court to issue a writ of mandamus and an injunction "to stop, prevent, and reverse the violation and threatened violations of the Texas Open Meetings Act...."

Both parties filed motions for summary judgment. The trial court granted the City's motion for summary judgment without specifying its reasons, denied the Appellant's motion, and entered a take-nothing judgment.

Discussion

Standard of Review

To obtain a summary judgment, the movant must show that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339 341 (Tex.1995); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). In determining whether a material fact issue exists, the court considers all evidence favorable to the nonmovant as true. Cathey, 900 S.W.2d at 341; Nixon, 690 S.W.2d at 548-49. If the defendant moves for summary judgment, he must negate at least one element of the plaintiff's cause of action or conclusively establish an affirmative defense. Cathey, 900 S.W.2d at 341.

When a court grants summary judgment for one movant and denies summary judgment for the other without specifying its reasons for so ruling, an appellate court may affirm the trial court's judgment if any of the grounds raised in the prevailing movant's motion were meritorious. Camco Int'l, Inc. v. Perry R. Bass, Inc., 926 S.W.2d 632, 635 (Tex.App.--Fort Worth 1996, writ denied). If the other movant raised meritorious grounds in its previously denied motion, then the appellate court may reverse the trial court's judgment and render judgment in favor of that party. Camco Int'l, Inc., 926 S.W.2d at 635; See Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). On appeal, the court must answer all questions presented in both motions. See Camco Int'l, Inc., 926 S.W.2d at 635.

In the case at bar, Appellants moved for summary judgment contending that Martinez' appointment as police chief was void because the City's actions in selecting Martinez violated the Open Meetings Act. Specifically, Appellants attempted to prove that (1) the City violated the Open Meetings Act at the March 23rd meeting by providing insufficient notice of what would be discussed in the executive session, (2) the City violated the Act at the May 4th meeting by making a final decision and voting while still in executive session, (3) the City again violated the Act at the May 4th meeting by not keeping a certified agenda, and (4) the City violated the Act at the May 6th meeting by not posting notice and by taking a final vote while still in closed session. They alleged that at each of these meetings steps were taken to select Martinez as police chief. Appellants provided the trial court with copies of the agenda notices and minutes from each meeting, except the notice for the May 6th meeting since none existed. They also supplied the certified agendas for each executive session, except for the one held on May 4, 1992 since none was available.

The City filed a response and counter-motion for summary judgment. In its motion, the City attacked Appellants' standing to bring the current action. The City asserted that this proceeding was in the nature of a quo warranto proceeding since Appellants sought to remove the current police chief from office; the City noted that only the attorney general or the county or district attorney can bring a quo warranto action. The City next responded that Rivera was barred from bringing the suit to challenge his suspension since he had already litigated his suspension in front of a hearing officer. The City also argued that E.J. Laurel was prohibited from bringing the suit because he was involved in a pending action litigating similar issues concerning his resignation. ² Additionally, the City asserted that the doctrine of laches barred the entire action.

Quo Warranto

Proceedings in the nature of a quo warranto challenge a person's right to hold a public office; such proceedings have been authorized by statute since 1879. See Act approved July 9, 1879, 16th Leg., S.S., ch. 48, § 1, 1879 Tex. Gen. Laws 75, 75, reprinted in 9 H.P.N. GAMMEL, LAWS OF TEXAS 43, 43 (current version at TEX. CIV. PRAC. & REM.CODE ANN. § 66.001 (Vernon 1986)). Texas courts have held that mandamus is not a proper remedy when quo warranto is available. Lewis v. Drake, 641 S.W.2d 392, 394 (Tex.App.--Dallas 1982, no writ). Quo warranto has also been held to be the exclusive remedy to challenge the authority of a public officer in injunction cases and cases in which a declaratory judgment is sought. Id. The reason for limiting the type of action that can be brought to challenge a public official has been stated as follows:

Public officers should be free to perform their duties without having their authority questioned incidentally in litigation between other parties. They should not be called on to defend their authority unless a proper legal officer of the State has determined that the question raised is serious and deserves judicial consideration as required by article 6253. This settled policy of the State is exemplified by cases holding that the decision of the Attorney General or the district or county attorney to present the information under that statute is a matter of discretion to be exercised for the protection of the public and cannot be controlled by mandamus.

Id. at 395 (citations omitted).

The Open Meetings Act, on the other hand, was enacted in 1967 in order to ensure that "the public has the opportunity to be informed concerning the transactions of public business." Acker v. Texas Water Comm'n, 790 S.W.2d 299, 300 (Tex.1990)(citing Acts 1967, ch. 271, § 7, 1967 Tex. Gen. Laws 597, 598). As the Texas Supreme Court later explained, the enactment "recognized the wisdom contained in the words of Justice Brandeis that: 'Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.' " Id. The court further noted:

The executive and legislative decisions of our governmental officials as well as the underlying reasoning must be discussed openly before the public rather than secretly behind closed doors. In order to effect this policy, this statute requires that "every regular, special, or called meeting or session of every governmental body shall be open to the public."

Id. (citations omitted). To effectuate the policy of keeping...