Save Our Springs Alliance, Inc. v. Austin Independent School Dist., Nos. 03-97-00606-C

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

Page 378

973 S.W.2d 378
128 Ed. Law Rep. 915
SAVE OUR SPRINGS ALLIANCE, INC. and El Concilio, Appellants,
v.
AUSTIN INDEPENDENT SCHOOL DISTRICT, Appellee.
Nos. 03-97-00606-CV, 03-97-00792-CV.
Court of Appeals of Texas,
Austin.
July 2, 1998.

Page 379

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.

Page 380

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.
BACKGROUND

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.

DISCUSSION

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

Page 381

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.

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.

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...

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6 practice notes
  • TANQUE VERDE UNIFIED SCHOOL v. Bernini, No. 2 CA-SA 2003-0067.
    • United States
    • Court of Appeals of Arizona
    • September 23, 2003
    ...cases from other jurisdictions, neither of which is helpful here: Save Our Springs Alliance, Inc. v. Austin Independent School District, 973 S.W.2d 378 (Tex.App. 1998), and Boney Publishers, Inc. v. Burlington City Council, 151 N.C.App. 651, 566 S.E.2d 701 (2002). Because the Texas statute ......
  • Fluellen v. State, No. 06-01-00132-CR.
    • United States
    • Court of Appeals of Texas
    • March 25, 2003
    ...Dist., 994 S.W.2d 862, 863 (Tex. App.-Houston [1st Dist.] 1999, no pet.); Save Our Springs Alliance, Inc. v. Austin Indep. Sch. Dist., 973 S.W.2d 378 (Tex.App.-Austin 1998, no pet.); West Orange-Cove Consol. Indep. Sch. Dist. v. Smith, 928 S.W.2d 773, 774 (Tex.App.-Beaumont 1996, no writ) (......
  • Curtis v. State, No. 25319.
    • United States
    • United States State Supreme Court of South Carolina
    • July 17, 2001
    ...is pending. See Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293 (Tex.Ct.App.1999); Save Our Springs Alliance v. Austin Indep. Sch. Dist., 973 S.W.2d 378 (Tex.Ct.App.1998) (trial court's final judgment rendered the appeal of the temporary injunction moot). According to Texas case law, dismis......
  • Tom James of Dallas, Inc. v. Cobb, No. 05-02-00449-CV.
    • United States
    • Court of Appeals of Texas
    • July 11, 2003
    ...v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236 (Tex.1991); Save Our Springs Alliance, Inc. v. Austin Indep. Sch. Dist., 973 S.W.2d 378, 384 (Tex.App.-Austin 1998, no pet.). However, Tom James timely filed a motion for new trial and to reconsider the summary On April 24, 2003......
  • Request a trial to view additional results
6 cases
  • TANQUE VERDE UNIFIED SCHOOL v. Bernini, No. 2 CA-SA 2003-0067.
    • United States
    • Court of Appeals of Arizona
    • September 23, 2003
    ...cases from other jurisdictions, neither of which is helpful here: Save Our Springs Alliance, Inc. v. Austin Independent School District, 973 S.W.2d 378 (Tex.App. 1998), and Boney Publishers, Inc. v. Burlington City Council, 151 N.C.App. 651, 566 S.E.2d 701 (2002). Because the Texas statute ......
  • Fluellen v. State, No. 06-01-00132-CR.
    • United States
    • Court of Appeals of Texas
    • March 25, 2003
    ...Dist., 994 S.W.2d 862, 863 (Tex. App.-Houston [1st Dist.] 1999, no pet.); Save Our Springs Alliance, Inc. v. Austin Indep. Sch. Dist., 973 S.W.2d 378 (Tex.App.-Austin 1998, no pet.); West Orange-Cove Consol. Indep. Sch. Dist. v. Smith, 928 S.W.2d 773, 774 (Tex.App.-Beaumont 1996, no writ) (......
  • Curtis v. State, No. 25319.
    • United States
    • United States State Supreme Court of South Carolina
    • July 17, 2001
    ...is pending. See Lowe v. Farm Credit Bank of Texas, 2 S.W.3d 293 (Tex.Ct.App.1999); Save Our Springs Alliance v. Austin Indep. Sch. Dist., 973 S.W.2d 378 (Tex.Ct.App.1998) (trial court's final judgment rendered the appeal of the temporary injunction moot). According to Texas case law, dismis......
  • Tom James of Dallas, Inc. v. Cobb, No. 05-02-00449-CV.
    • United States
    • Court of Appeals of Texas
    • July 11, 2003
    ...v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236 (Tex.1991); Save Our Springs Alliance, Inc. v. Austin Indep. Sch. Dist., 973 S.W.2d 378, 384 (Tex.App.-Austin 1998, no pet.). However, Tom James timely filed a motion for new trial and to reconsider the summary On April 24, 2003......
  • Request a trial to view additional results

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