Stelzer v. Huddleston, 834

• Decision Date: 14 August 1975
• Docket Number: No. 834,834
• Citation: 526 S.W.2d 710
• Parties: J. B. STELZER et al., Appellants, v. Bill Ray HUDDLESTON et al., Appellees.
• Court: Texas Court of Appeals

Page 710

526 S.W.2d 710

J. B. STELZER et al., Appellants, v. Bill Ray HUDDLESTON et al., Appellees.

No. 834.

Court of Civil Appeals of Texas, Tyler.

Aug. 14, 1975.

Rehearing Denied Sept. 4, 1975.

William M. Boyd, Boyd, Veigel & Gay, Inc., McKinney, for appellants.

Ralph Elliott, Elliott & Nall, Sherman, for appellees.

MOORE, Justice.

This is a school bond election contest. Appellants (contestants) brought suit against appellee, Celina Independent School District, contesting the validity of the election held on April 27, 1974, upon two propositions, to-wit: (1) whether to authorize Board of Trustees to levy an ad valorem tax as authorized by Section 20.04 of the Texas Election Code and (2) whether bonds should issue in the amount of $1,430,000.00 for school building purposes. The election carried in favor of both propositions by approximately two to one majority. The trial court, sitting without a jury, entered a 'take nothing' judgment against appellants, thereby impliedly sustaining the results of the elections from which judgment appellants perfected this appeal.

Neither party requested findings of fact nor conclusions of law and as a result the record is before us by way of a statement of facts only.

Appellants urge by their first two points of error that the trial court erred in refusing to rule that the bond election was void, or in the alternative was voidable, because of the school board's failure to give proper notice of the meeting at which the school trustees voted to call the election and its meeting to canvass the election returns. The basis of appellants' contention is that the School District's notices of the meetings did not comply with the public notice provisions of Article 6252--17, Vernon's Ann.Civ.St., known as the 'Texas Open Meeting Law.' The pertinent provisions of the statute are as follows:

'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.

'(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, in addition, shall either furnish a notice to the county clerk in the county in which most, if not all, of the school district's pupils reside or 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 for at least 72 hours preceding the day of the meeting, except that in case of Emergency or urgent public necessity, which shall be expressed in the notice, it shall be sufficient if notice is posted Two hours before the meeting is convened. In the event of an emergency meeting, the presiding officer or the member calling such meeting shall, if request therefor containing all pertinent information has previously been filed at the headquarters of the governmental body, give notice by telephone or telegraph to any news media requesting such notice and consenting to pay any and all expenses incurred by the governmental body in providing such special notice. The notice provisions for legislative committee meetings shall be as provided by the rules of the house and senate.' (Emphasis added.)

The facts, when viewed in a light most favorable to the judgment, reveal that the School District was seriously below the accreditation standards set by the Texas Education Agency. It had been warned that its physical plant did not meet the standards set by the agency and unless some action was taken to comply, the District would lose all State aid, accounting for eighty percent of all funds supporting the School District. On December 10, 1973, the Celina School Board commenced discussion of a building program. Thereafter, the Board held numerous meetings with architects and financial advisors and finally determined that a school bond election would be necessary. On March 18, 1974, the Board met and upon finding that the cost figures for the building program were not yet available, called a special meeting for March 26th, anticipating that by March 26th the cost figures would be available so that the bond election could be ordered at such time. Shortly after the March 18th meeting the local weekly newspaper, the Celina Record, was notified that the School Trustees had decided to meet again on March 26th for the purpose of calling a school bond election. On March 21st the newspaper carried an extensive, page one report of the March 18th meeting and stated that at the March 26th meeting the School Board would further discuss the building program and the calling of a bond election. Noel Johnson, the Board's financial advisor, testified that in an effort to comply with the 'notice' provisions of the statute he went to McKinney on March 22nd and posted a notice of the March 26th meeting on the courthouse bulletin board. He further testified he posted another notice of the March 26th meeting on the bulletin board at the school two hours before the meeting. Perry Morris, the School Superintendent, testified he too posted a notice of the March 26th meeting on the school bulletin board shortly after 8:00 a.m. on March 25th. The notice posted by Superintendent Morris stated that the meeting would be held in the High School library at 7:30 p.m., and further stated that the purpose of the March 26th meeting was to discuss the building program and the calling of a bond election. The Board convened in open meeting on March 26th in the Celina High School. While the only parties appearing at the meeting were the school trustees, architects and the financial advisor, it is without dispute that no person was excluded from the meeting and that at no time did the School Board hold a closed meeting or have any discussion outside the open meeting room where the meeting was held. After an extended discussion, the school trustees called the election in question for April 27, 1974.

Appellants argue that since the undisputed evidence shows that the notices which were posted on the school bulletin board were not posted for a full 72 hours before the day of the meeting, the action of the School Board in ordering the election was void or voidable. Appellants take the position that literal compliance with the notice provisions of the statute is required. Consequently, they maintain that even though the School Board complied with the statute by giving notice to the local newspaper, since notice was not posted on the school bulletin board for the full 72 hours prior to the meeting, the order calling the bond election was void for lack of public notice and substantial compliance was not sufficient. We cannot agree with this proposition.

This is not a situation where the 'open meeting law' was completely ignored and a closed meeting was held as was the case in Toyah Ind. Sch. Dist. v. Pecos-Barstow Ind. Sch. Dist., 466 S.W.2d 377 (Tex.Civ.App., San Antonio, 1971, n.w.h.). In this case the School Board made an effort to comply with the statute but failed only because the notice was not posted on the school bulletin board for the required length of time. There is nothing to suggest that the failure to post the notice on the school bulletin board for the...