NUMBER 13-07-00278-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

ANTHONY ROGERS, Appellant,

v.

THE CITY OF MCALLEN, Appellee.

 

On appeal from the 332nd District Court of Hidalgo County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Benavides

Memorandum Opinion by Justice Garza

Appellant, Anthony Rogers, challenges the trial court’s judgment in favor of

appellee, the City of McAllen (the “City”). Upon being terminated from his employment as

Fire Chief, Rogers sued the City seeking a declaratory judgment that the City failed to

comply with the Texas Open Meetings Act. See TEX. CIV. PRAC. & REM. CODE ANN. §

37.004 (Vernon 2008); TEX. GOV’T CODE ANN. § 551.001-.146 (Vernon Supp. 2007). The

City counterclaimed, requesting declaratory relief and attorney’s fees. After a bench trial,

the trial court ruled in favor of the City. By two issues on appeal, Rogers claims that, as

a matter of law, the City failed to give proper notice of the McAllen City Commission (the
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“Commission”) meeting during which the decision was made to terminate him. By three

issues, Rogers contests the trial court’s award of attorney’s fees to the City. We affirm.

I. BACKGROUND

Rogers was hired by the City as its Fire Chief in November 2001. In October of

2002, Rogers became embroiled in a controversy involving a list created by the McAllen

Fire Department (the “Fire Department”) of properties to be inspected for fire and building

code violations. Almost all of the properties listed were owned by a single City

Commissioner, leading to suspicions that the list was created specifically to target that

individual. Rogers initially told City Manager Mike Perez, who was investigating the matter,

that he did not know who created the list; in fact, Rogers did know who created the list.

Upon learning of Rogers’ false statement, Perez asked that the Commission take action

regarding Rogers’ employment. Subsequently, the City provided Rogers with notice of the

October 28, 2002 Commission meeting, which included the following agenda item:

“Consideration and Action relating to the employment of the Fire Chief.”

Having been notified that the Commission was going to consider termination of his

employment, Rogers called a press conference prior to the October 28, 2002 meeting to

plead his side of the story. At the meeting, scores of fire department employees and

advocates of Rogers protested in his support. The Commission decided to temporarily

suspend Rogers from his duties as Fire Chief. As part of the terms of the suspension,

Rogers was forbidden from communicating with the Fire Department. Rogers was also

placed on one year of probation, during which he was required to acknowledge Perez’s and

the Commission’s authority over him, to follow Perez’s instructions, and to keep Perez

informed.

However, Rogers repeatedly contacted and gave directions to Fire Department staff,

including the acting chief, during his suspension. Moreover, when he returned from

suspension, he often disregarded Perez’s instructions. Nearly a year after Rogers returned
 In his original petition, Rogers also sought back pay and benefits, as well as future pay and benefits, 1

as damages resulting from his termination. However, this is not the type of relief afforded under the Open

Meetings Act. See TEX. GOV’T CODE ANN. § 551.142 (Vernon 2004) (providing that “[a]n interested

person . . . may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or

threatened violation of this chapter by members of a governmental body.”). Rogers later amended his petition

to seek reinstatement through injunctive or mandamus relief. See id.

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from serving his suspension, the Commission listed the following as item number 9(E) on

the agenda for its September 22, 2003 meeting:

Consideration and Action regarding request by Chief Rogers to meet with

City Commission to discuss the investigation conducted by the Civil Service

Commission and consideration and possible action regarding Chief

Rogers’[s] job performance and employment.

This agenda item was listed under “Executive Session,” after the “End of Public Hearing.”

Rogers received a copy of the agenda on September 19, 2003, after which he wrote to the

McAllen City Secretary asking that the “discuss[ion] of the investigation conducted by the

Civil Service Commission” be removed from the agenda.

At the September 22, 2003 Commission meeting, the commissioners considered

the issue of Rogers’s employment with the City. The commissioners held an executive

session, then returned to an open session and gave Rogers an opportunity to speak

regarding his job performance and employment. Subsequently, Perez recommended that

Rogers’s employment be terminated, and the commissioners unanimously approved the

recommendation.

On May 5, 2004, Rogers sued the City, seeking a declaratory judgment that the City

failed to comply with the notice requirements provided in the Texas Open Meetings Act,

and requesting attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004; TEX.

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GOV’T CODE ANN. § 551.142. Specifically, Rogers contended that the notice provided by

the City of the agenda for the September 22, 2003 meeting did not expressly state that the

Commission would consider terminating his employment. On May 24, 2004, the City filed

an original answer and counterclaim for declaratory judgment, seeking a declaration that

its notice complied with the provisions of the Open Meetings Act and requesting attorney’s
 Prior to trial, the parties agreed to separate the Open Meetings Act claims from the competing claims

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for attorney’s fees.

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fees.

A bench trial took place on November 14, 2005. After the parties provided post-trial 2

briefing, the trial court found in favor of the City and awarded the City $20,000 in trial

attorney’s fees, along with $32,000 in attorney’s fees if the case is appealed to this Court,

$10,000 if a petition for review is filed with the Texas Supreme Court, and $18,000 if the

supreme court orders briefing. The trial court entered findings of fact and conclusions of

law on March 27, 2007. Rogers filed a motion for new trial with the trial court on March 2,

2007, which was overruled by operation of law. See TEX. R. CIV. P. 329b(c). Rogers filed

his notice of appeal on May 3, 2007.

II. DISCUSSION

A. Open Meetings Act

By his first issue, Rogers contends that the notice provided by the City of the

September 22, 2003 meeting was insufficient as a matter of law under the Texas Open

Meetings Act. By his second issue, Rogers claims that the “evidence adduced at trial did

not support a finding that the notice provided by the City and contained in the City

Commission agenda of September 22, 2003 met the requirements for an ‘open meeting,’

as that term is defined under Texas law.” We construe Rogers’s second issue as a

challenge to the legal sufficiency of the evidence supporting the trial court’s judgment, and

we consider Rogers’s first two issues together.

1. Standard of Review

We review a trial court’s findings of fact for legal and factual sufficiency of the

evidence by the same standards applied when reviewing evidence supporting jury findings.

Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Barrera v. Hondo Creek Cattle Co.,

132 S.W.3d 544, 547 (Tex. App.–Corpus Christi 2004, no pet.). The trial court’s
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conclusions of law are given a de novo review on appeal, and these legal conclusions will

be upheld unless they are erroneous as a matter of law. Barrera, 132 S.W.3d at 547

(citing Pegasus Energy Group, Inc. v. Cheyenne Petroleum Co., 3 S.W.3d 112, 121 (Tex.

App.–Corpus Christi 1999, pet. denied)).

Rogers bore the burden of proof in the trial court to show that the City’s notice did

not meet the requirements of the Open Meetings Act. See Dodd v. City of Beverly Hills,

78 S.W.3d 509, 514 n.4 (Tex. App.–Waco 2002, pet denied); Swate v. Medina Cmty.

Hosp., 966 S.W.2d 693, 697 (Tex. App.–San Antonio 1998, pet. denied). When a party

attacks the legal sufficiency of an adverse finding on an issue on which it has the burden

of proof, that party must demonstrate on appeal that the evidence establishes, as a matter

of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237,

241 (Tex. 2001) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); W.

Wendell Hall, Standards of Review in Texas, 29 ST. MARY’S L.J. 351, 481-82 (1998)). In

reviewing such a challenge, we must first examine the record for evidence that supports

the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to

support the finding, we will then examine the entire record to determine if the contrary

proposition is established as a matter of law. Id. The issue should be sustained only if the

contrary proposition is conclusively established. Id. (citing Croucher v. Croucher, 660

S.W.2d 55, 58 (Tex. 1983)).

2. Applicable Law

Section 551.002 of the Texas Government Code provides that “[e]very regular,

special, or called meeting of a governmental body shall be open to the public, except as

provided by this chapter.” TEX. GOV’T CODE ANN. § 551.002; see id. § 551.001(3)(C)

(defining “governmental body” as, inter alia, “a municipal governing body in the state”).

Section 551.041 states that “[a] governmental body shall give written notice of the date,
 The Texas Supreme Court has articulated the policy underlying this statute thusly: 3

Our citizens are entitled to more than a result. They are entitled not only to know what

government decides but to observe how and why every decision is reached. The explicit

command of the statute is for openness at every stage of the deliberations. Accordingly, we

have demanded exact and literal compliance with the terms of this statute.

Acker v. Tex. Water Comm’n, 790 S.W .2d 299, 300 (Tex. 1990) (citing Smith County v. Thornton, 726 S.W .2d

2, 3 (Tex. 1986)).

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hour, place, and subject of each meeting held by the governmental body.” Id. § 551.041.3

Generally, as long as a meeting notice alerts the reader to the topic for

consideration, it is not necessary for the notice to state all of the consequences which may

flow from consideration of the topic. Cox Enters., Inc. v. Board of Trustees, 706 S.W.2d

956, 958 (Tex. 1986); see Sokolow v. City of League City, 37 F.Supp.2d 940, 946-47 (S.D.

Tex. 1999). However, when the topic is of special interest to the public, the description

must be more detailed, and must provide “reasonable specificity of the subject matter to

be considered.” Cox, 706 S.W.2d at 959 (citing Op. Tex. Att’y Gen. No. H-1045 (1977)).

Moreover, “as public interest in a matter increases, a correspondingly more detailed

description of the subject under consideration must be given.” Rettberg v. Tex. Dep’t of

Health, 873 S.W.2d 408, 411 (Tex. App.–Austin 2004, no pet.) (citing Cox, 706 S.W.2d at

959; Point Isabel Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176, 180 (Tex. App.–Corpus

Christi 1990, writ denied)).

In Cox, the Texas Supreme Court found that the word “personnel” was insufficiently

specific to notify the public of the selection of a new school superintendent. 706 S.W.2d

at 959. The court, noting that the “[s]election of a new school superintendent is not in the

same category as ordinary personnel matters,” found that more specificity was needed in

order to provide “full and adequate” notice to the public under the Open Meetings Act. Id.;

see Salazar v. Gallardo, 57 S.W.3d 629, 633-34 (Tex. App.–Corpus Christi 2001, no pet.);

Point Isabel, 797 S.W.2d at 187.

The Waco Court of Appeals has held that, as a matter of law, the public has a
 The City concedes that it was required to “specifically state the position—Fire Chief—or the 4

individual—Appellant—whose employment is the subject of the agenda item.”

 Deputy City Attorney Kevin Pagan testified that he composed the first part of agenda item 5

9(E)—“Consideration and Action regarding request by Chief Rogers to meet with City Commission to discuss

the investigation conducted by the Civil Service Commission”—with the understanding that Rogers had, in

fact, requested such a meeting. It was only after he crafted this first part of the agenda item that he learned

that City Manager Perez “was going to recommend disciplinary action and likelihood [sic] recommend that he

be terminated.”

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“special interest in jobs of the Fire Chief and the Fire Captain.” Markowski v. City of Marlin,

940 S.W.2d 720, 726 (Tex. App.–Waco 1997, pet. denied) (citing Mayes v. City of De

Leon, 922 S.W.2d 200, 203 (Tex. App.–Eastland, 1996, writ denied) (holding that the job

of a police chief was of special interest to the public because of “the broad contact with the

public that those duties involve”)).

3. Analysis

The City does not dispute that Rogers’s employment as Fire Chief was a matter of

“special public interest” and therefore that the notice of the September 2003 City

Commission meeting was required to be more specific that of an “ordinary personnel

matter.” See Cox, 706 S.W.2d at 959.

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Rogers argues that the City’s notice of the meeting was insufficient, in part because

it “did not include the term ‘disciplinary action’ or the word ‘termination’” in the agenda

notice, “nor did it separate [Rogers’s] alleged ‘request’ to discuss the Civil Service

investigation with the City Commission from the distinct issue of taking disciplinary action

against [Rogers].” However, the City was only required to provide “reasonable specificity 5

of the subject matter to be considered” at the meeting. See Cox, 706 S.W.2d at 959. The

notice was reasonably specific in that it stated that the Commission might take “possible

action regarding Chief Rogers’s job performance and employment.”

Moreover, Rogers testified that the City’s notice of the October 2002 City

Commission meeting agenda provided sufficient notice to him that the commission might

terminate his employment at that meeting. However, that notice was, if anything, less
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specific than the notice regarding the September 2003 meeting. Rogers’s contention that

the September 2003 notice did not sufficiently inform the public of the possibility that he

might be terminated as Fire Chief is therefore unfounded.

Rogers further contends that the matter of his potential termination was of such

public importance that it required a notice with specificity beyond that which is required

under Cox. See Cox, 706 S.W.2d at 959; Rettberg, 873 S.W.2d at 411 (stating that “as

public interest in a matter increases, a correspondingly more detailed description of the

subject under consideration must be given”). To support this contention, Rogers relies

heavily on the large display of public support for him at the October 2002 meeting. Perez

testified that 125 to 150 people appeared at that meeting in support of Rogers and that

there was picketing outside of City Hall during the meeting. Perez noted that this level of

public concern was rare, and that it was unprecedented for such heavy public turnout and

picketing to also be accompanied by a press conference. Rogers cites Perez’s testimony

in support of his claim that “public interest in possible disciplinary action against this Fire

Chief rose to an entirely new level.”

Even if we were to agree that the “entirely new level” of public concern for Rogers

in October 2002 mandated a stricter notice requirement than that elucidated in Cox, the

record does not reflect that this level of concern persisted until September 2003. The

October 2002 meeting was held at a time that the fire investigation controversy was a focus

of significant public interest. In contrast, the September 2003 meeting and its agenda item

regarding Rogers’s employment related solely to Rogers’s alleged failure to comply with

the terms of his probationary period. It is also noteworthy that it was Rogers himself who

organized the October 2002 press conference and rallied his supporters to attend the

October 28, 2002 meeting. No such organization was evident in 2003. Therefore, we

agree with the trial court that, although there was significant media attention and public

interest paid to Rogers’s employment in October 2002, the public did not have an
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exceptionally high interest in Rogers’s employment status in 2003 as would warrant an

stricter notice requirement.

Moreover, assuming arguendo that the potential termination of Rogers’s

employment was a matter of “special public interest” as late as September 2003, see

Markowski, 940 S.W.2d at 726, we find that the City’s notice was sufficient under the Open

Meetings Act. Specifically, we concur with the trial court’s finding of fact that the notice

“plainly states that the Commission would consider and possibly act upon Rogers’[s]

employment[,] . . . plainly communicates to the public [that] the subject matter of the

discussion would be Rogers’[s] employment as Fire Chief . . . [and] clearly implicates the

issue of possible termination of that employment.” We further conclude that there was

legally sufficient evidence to support the trial court’s findings of fact and that its conclusions

of law were not erroneous. See Barrera, 132 S.W.3d at 547; see also Dow Chem. Co., 46

S.W.3d at 241. Accordingly, Rogers’s first two issues are overruled.

B. Attorney’s Fees

By his third and fourth issues, Rogers alleges that there was insufficient evidence

to support the trial court’s award of attorney’s fees to the City. By his fifth issue, Rogers

contends that the trial court improperly overruled his objections to the attorney’s fees

affidavits filed by the City.

1. Standard of Review

In cases brought under the Open Meetings Act, the trial court has the discretion to

award “costs of litigation and reasonable attorney fees incurred by a plaintiff or defendant

who substantially prevails.” TEX. GOV’T CODE ANN. § 551.142(b). “In exercising its

discretion, the court shall consider whether the action was brought in good faith and

whether the conduct of the governmental body had a reasonable basis in law.” Id.

Additionally, the trial court has the discretion to award reasonable and necessary attorney’s

fees in cases brought under the Declaratory Judgments Act. See TEX. CIV. PRAC. & REM.
10

CODE ANN.§ 37.009 (Vernon 2008); Roberson v. City of Austin, 157 S.W.3d 130, 137 (Tex.

App.–Austin 2005, pet. denied). A trial court abuses its discretion if it acts in an arbitrary

or unreasonable manner, or if it acts without reference to any guiding rules or principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 328, 241-42 (Tex. 1985). Under this

standard, we may not substitute our own judgment for the trial court’s judgment. See

Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

Under an abuse of discretion standard, legal insufficiency of the evidence is not an

independent reversible ground of error but is a relevant factor in assessing whether the trial

court abused its discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.

1991); see Weingarten Realty Investors v. Harris County Appraisal Dist., 93 S.W.3d 280,

283 (Tex. App.–Houston [14th Dist.] 2002, no pet.) (op. on reh’g). We also review a court’s

ruling on the admission of evidence for abuse of discretion. City of Brownsville v.

Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); see also Sadoskas v. Sadoskas, No. 13-02-

216-CV, 2003 Tex. App. LEXIS 6211, at *3 (Tex. App.–Corpus Christi July 17, 2003, no

pet.) (mem. op.). Therefore, we consider Rogers’s third, fourth, and fifth issues together.

2. Analysis

On July 31, 2006, the trial court held a hearing during which the parties presented

arguments and evidence regarding attorney’s fees. At this time, the City filed affidavits by

Raymond Cowley and Renee McElhaney, two of the City’s trial attorneys, regarding

attorney’s fees. The trial court based its award of trial attorney’s fees solely on Cowley’s

affidavit; it based its award of appellate fees solely on McElhaney’s affidavit. Following the

City’s production of the affidavits at the hearing, Rogers’s trial counsel made the following

objection:

Your Honor, we object to the affidavit on a number of grounds. First

of all, we believe it’s hearsay. There has been no testimony in this case as

to attorney’s fees. If counsel wishes to seek attorney’s fees, he has the

obligation to show that they are reasonable and necessary. I don’t believe

that’s been done in this case.
 Texas Rule of Civil Procedure 193.6(a) provides as follows: 6

A party who fails to make, amend, or supplement a discovery response in a timely manner

may not introduce in evidence the material or information that was not timely disclosed, or

offer the testimony of a witness (other than a named party) who was not timely identified,

unless the court finds that:

(1) there was good cause for the failure to timely make, amend, or supplement

the discovery response; or

(2) the failure to timely make, amend, or supplement the discovery response

will not unfairly surprise or unfairly prejudice the other parties.

TEX. R. CIV. P. 193.6(a).

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Secondly, under the request for disclosures, which were propounded

upon the City of McAllen and which were responded to by the City of McAllen

– and I’ll provide the Court, if I may, with a copy of these disclosures. Mr.

Cowley indicated under the expert provision of those disclosures that he

would be testifying as to reasonable and necessary attorney’s fees. It’s

highlighted, I believe, on the fourth page of the disclosures.

He also testified that a reasonable fee for a board certified labor

lawyer would be $200.00. He said the issues in this case were neither novel

nor complex and that a non[-]board[-]certified attorney in labor and

employment would be billed out at $300.00 an hour. The hours that are set

forth in the affidavit are significantly higher than that if you go through them.

He has not indicated whether any of these attorneys, other than himself, are

board certified in labor and employment law.

He also did not provide these documents which presumably were

available at the time of trial pursuant to the request for disclosure which he

would have been required to do to rely upon them, so we object on that basis

as well.

Rogers first contends on appeal that the trial court should not have considered

McElhaney’s affidavit because McElhaney was not disclosed as an expert witness in

response to Rogers’s request for disclosure. The City argues that Rogers waived this 6

issue by not raising it in the trial court. We agree.

In order to preserve a complaint for appellate review, a party must present to the

trial court a timely request, objection or motion, state the specific grounds therefor, and

obtain a ruling. TEX.R.APP.P.33.1(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991);

Poland v. Grigore, 249 S.W.3d 607, 618 (Tex. App.–Houston [1st Dist.] 2008, no pet.)

(challenges concerning attorney fee awards must be preserved to be asserted on appeal);
 Section 18.001(d) of the Texas Civil Practice and Remedies Code provides that “[t]he party offering 7

the affidavit in evidence or the party's attorney must serve a copy of the affidavit on each other party to the

case at least 30 days before the day on which evidence is first presented at the trial of the case.” TEX. CIV.

PRAC.& REM. CODE ANN. § 18.001(d) (Vernon 2008). The City produced its attorney’s fees affidavits to Rogers

on June 21, 2006, which was more than thirty days prior to July 31, 2006, the date the affidavits were first

presented to the court.

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see Thomas v. State, 226 S.W.3d 697, 704-05 (Tex. App.–Corpus Christi 2007, no pet.)

(“The objection made at trial must mirror the contention on appeal or the point of error will

be waived.”).

Rogers’s counsel did not object at trial to McElhaney’s affidavit on the grounds that

she was not disclosed as an expert witness. Although Rogers’s counsel did address the

fact that Cowley was disclosed as an expert witness with regard to appellate fees, he did

not complain that McElhaney had not been so disclosed. See TEX.R.APP.P. 33.1(a)(1)(A)

(objection in trial court must “state[] the grounds for the ruling . . . with sufficient specificity

to make the trial court aware of the complaint, unless the specific grounds were apparent

from the context”). Moreover, although Rogers’s counsel objected to the City’s failure to

produce the affidavits in response to Rogers’s request for disclosure, he did not object

specifically that McElhaney’s affidavit was inadmissible because she was not disclosed as

an expert. We conclude that Rogers has waived this argument. See TEX. R. APP. P.

33.1(a).

Rogers further argues that the trial court erred in considering either affidavit because

they contained inadmissible hearsay. However, affidavit testimony is sufficient to serve as

proof that attorney’s fees are reasonable and necessary. TEX. CIV. PRAC. & REM. CODE

ANN. § 18.001(b) (Vernon 2008) (“Unless a controverting affidavit is filed as provided by

this section, an affidavit that the amount a person charged for a service was reasonable

at the time and place that the service was provided and that the service was necessary is

sufficient evidence to support a finding of fact by judge or jury that the amount charged was

reasonable or that the service was necessary.”). Rogers’s hearsay argument is without 7

merit because he never filed a controverting affidavit. See id.
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We conclude that the City’s affidavits constituted sufficient evidence to support the

trial court’s award of trial and appellate attorney’s fees to the City. We further conclude

that the trial court did not abuse its discretion in awarding such fees. See Beaumont Bank,

806 S.W.2d at 226. Accordingly, Rogers’s third, fourth, and fifth issues are overruled.

III. CONCLUSION

Having overruled Rogers’s five issues on appeal, we affirm the judgment of the trial

court.

 

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and 

filed this the 21st day of August, 2008.