Save Our Springs Alliance, Inc. v. Austin Independent School Dist.

Decision Date02 July 1998
Docket Number03-97-00792-CV,Nos. 03-97-00606-C,s. 03-97-00606-C
Citation973 S.W.2d 378
Parties128 Ed. Law Rep. 915 SAVE OUR SPRINGS ALLIANCE, INC. and El Concilio, Appellants, v. AUSTIN INDEPENDENT SCHOOL DISTRICT, Appellee.
CourtTexas Court of Appeals

William G. Bunch, Austin, for Appellants.

C. Robert Heath, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P., Austin, for Appellee.

Before YEAKEL, C.J., and ABOUSSIE and JONES, JJ.

YEAKEL, Chief Justice.

This case requires us to interpret the meaning and scope of the real estate exception to the Texas Open Meetings Act. See Tex. Gov't Code Ann. § 551.072 (West 1994). Appellants Save our Springs Coalition, Inc.

and El Concilio sued appellee Austin Independent School District ("the District") for violating the Texas Open Meetings Act by discussing in closed session topics that did not fall within the real estate exception. See Tex. Gov't Code Ann. §§ 551.001-.146 (West 1994 & Supp.1998) ("the Act"). The trial court granted summary judgment in favor of the District. We will affirm the trial court's judgment.


In mid-1996, the District began conducting meetings and discussions to decide where to locate new schools, including two new middle schools. From November of that year until March of the next, the District conducted a series of public hearings to solicit input regarding the selection of the sites for such schools. These public discussions resulted in the selection of two "relief areas," zones the District determined to have the greatest need for new middle schools.

In May 1997, the District conducted a series of closed meetings to consider the available properties within the two relief areas. Over the course of the closed meetings, the District culled the available properties until two were left in one area and three were left in the other. At that point, the District conducted another public hearing to receive comments on the narrowed list of available properties. The District then notified the public that it would meet in closed session on August 11, 1997 to consider the middle school site selection. The District met in closed session and then reopened the public meeting. At the public meeting, the District voted and selected one property in each relief area.

Appellants, citizen groups advocating preservation of the environment and certain neighborhoods in Austin, sued the District, alleging the District violated the Act by discussing middle school site selection in closed session. Appellants sought a declaration that the District had violated the Act and that the District's subsequent vote was void or voidable. They also sought a temporary injunction, permanent injunction, and writ of mandamus forcing the District to, among other things, reverse its prior action arising out of the allegedly improper closed discussions.

The trial court conducted a hearing on the request for a temporary injunction and denied the request. Appellants pursued an interlocutory appeal to this Court. 1 While the interlocutory appeal was pending, the District filed a motion for summary judgment, which the trial court granted. 2 Appellants challenge this final judgment in seven points of error. 3 The appeals have been combined for submission and consideration.


The Act generally requires governmental entities to make their meetings open to the public, see Act § 551.002 (West 1994), but contains several exceptions, see Act §§ 551.071-.085 (West 1994 & Supp.1998). One of those exceptions authorizes public entities to "conduct a closed meeting to deliberate the purchase, exchange, lease, or value of real property if deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person." Act § 551.072 (West 1994). The District relied upon this exception when it notified the public that it planned to meet in closed session on August 11, 1997 to discuss middle school site selection.

Appellants' seven points of error attacking the final judgment fall into two categories: three concern rulings the trial court made on certain evidence appellants introduced at different At the summary-judgment hearing, appellants attempted to introduce tape recordings of the closed session discussions. The trial judge denied admission of the tapes. The trial court also refused to listen to the tapes at that time.

phases of the proceedings and four concern the propriety of the trial court's ruling on the merits of the motion for summary judgment. We will first address points of error four, five, and six, those concerning the trial court's evidentiary rulings.

The trial court did not err in refusing to admit evidence tendered at the summary-judgment hearing. The nonmovant in a summary-judgment proceeding may not, without leave of court, submit proof later than seven days before the hearing. Tex.R. Civ. P. 166a(c). Appellants did not obtain leave of court to submit the evidence late. Furthermore, appellants did not seek a delay, as provided for in Texas Rule of Civil Procedure 166a(g), to obtain affidavits or depositions that would controvert the District's proof. A party may not present new evidence at the summary-judgment hearing. Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 589 (Tex.1996); State v. Easley, 404 S.W.2d 296, 297 (Tex.1966) (holding trial court erred in admitting and considering extrinsic evidence at summary-judgment hearing). Therefore, the trial court's refusal to admit the late-proffered tape recordings at the hearing on the motion for summary judgment was not error.

Furthermore, the trial court did not err in refusing to listen to the tape recordings before ruling on the motion for summary judgment. When a trial court hears a motion for summary judgment, the court need consider only the record properly before it. See, e.g., WTFO, Inc. v. Braithwaite, 899 S.W.2d 709, 721 (Tex.App.--Dallas 1995, no writ) (citing Evans v. Conlee, 741 S.W.2d 504, 510 (Tex.App.--Corpus Christi 1987, no writ)).

Because appellants did not properly present the tape recordings in a form appropriate for consideration in a summary-judgment proceeding, we cannot say the trial court erred in refusing to admit or review the evidence. We overrule points of error four, five, and six.

We now turn to the points of error concerning the propriety of the court's ruling on the merits of the motion for summary judgment. Points of error one through three focus on whether the District's closed session discussion on August 11, 1997 fell within the real estate exception. In their first two points, appellants contend the District's discussion of the potential middle school sites in closed session did not fall within the exception because: (1) the District already owned one of the potential sites in one relief area, and (2) the District had already entered into an earnest money arrangement on one of the potential sites in the other relief area. According to appellants, the District was no longer involved in negotiations with respect to these two properties when it discussed them in the closed meeting; thus, the District's closed discussion of all of the properties fell outside the real estate exception. In their third point, appellants advocate a similar argument that the District's discussion in closed session of social and environmental issues tied to site selection, specifically the effect of locating a school outside minority neighborhoods and over the Edwards Aquifer, did not fall within the real estate exception because it did not concern price negotiations.

Central to each of these contentions is appellants' argument that the real estate exception authorizes closed session discussion of only the amount of money an agency will pay for a certain piece of property. Resolution of this issue requires us to consider the meaning and scope of the words "deliberate the purchase, exchange, lease, or value of real property." No Texas court has construed the real estate exception; the meaning and scope of the exception is a matter of first impression and is a question of law we review de novo. See In re Humphreys, 880 S.W.2d 402, 404 (Tex.1993).

Appellants argue, and we acknowledge, that the exceptions in the Act are narrowly drawn. See Acker v. Texas Water Comm'n, 790 S.W.2d 299, 300 (Tex.1990) (citing Cox Enters. v. Board of Trustees of Austin Indep. Sch. Dist., 706 S.W.2d 956, 958 A federal court has opined, and we agree, that the legislature enacted the real estate exception to prevent an agency from having to "telegraph its punch" in an open meeting to the detriment of the taxpayers. See Finlan v. City of Dallas, 888 F.Supp. 779, 787 (N.D.Tex.1995). Open discussion of the amount of money an agency will offer or accept for a single piece of property is not the only discussion that concerns the "purchase, exchange, lease, or value of real property" or that will "telegraph the agency's punch." "Value" includes not only "monetary worth," but also "relative worth, utility, or importance." Webster's Third New International Dictionary 2530 (Philip B. Gove ed., 1986). When an agency is considering purchasing one of several pieces of property, it may determine the "value" of the various properties based on factors other than purchase price. Open discussion of an agency's subjective valuation of properties, even if expressed in nonmonetary terms, might "telegraph the agency's punch" by making the agency's preference known to sellers who might then demand more money for the preferred properties than they would if they thought they were competing equally with other sellers. This consideration does not evaporate simply because the agency already owns one of the properties and has negotiated the price of another. So long as the agency deliberates the value of those properties in comparison to the value of some other property, the price of which the agency has not negotiated, and deliberating in open session would...

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