### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00276- CV

Texas State Board of Public Acc ountan cy and Board Mem bers A. Car los Barrer a, John W. Du nbar, David D. Duree, Jam es C. F lagg, Dorothy F owl er, Eve lyn M. Mart inez,

Jam es P ollard, and Cather ine Rodewal d, App ellants

v. Carl Bass, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0005 1, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING
&

NO. 03-10-00277- CV

Texas State Board of Public Acc ountan cy and Board Mem bers A. Car los Barrer a, John W. Du nbar, David D. Duree, Jam es C. F lagg, Dorothy F owl er, Eve lyn M. Mart inez,

Jam es P ollard, and Cather ine Rodewal d, App ellants

v. P atric ia Gr utzm acher, A ppellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0005 3, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING
&NO. 03-10-00278- CV

Texas State Board of Public Acc ountan cy and Board Mem bers A. Car los Barrer a, John W. Du nbar, David D. Duree, Jam es C. F lagg, Dorothy F owl er, Eve lyn M. Mart inez,

Jam es P ollard, and Cather ine Rodewal d, App ellants v. Thomas Bauer, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0005 2, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

O P I N I O N

Carl Ba ss, Patricia Grutzmacher , a n d T h o ma s Ba

uer (collec tively , the “ac countants”)

are former employ ees of Arthur Ander sen L L P. Whil e employ ed by Ander sen, they participa ted in the 1997 and 1998 audits of Enron Corporation’s financ ial statements. Their work on those Enron audits led to disciplinary actions ag ainst them by the Texas State Boa rd of Public Acc ountancy

. This consolidat ed appeal arises out of their individual suits for judicial revie w of the Boa rd’s order s revoking Ba ss’s and Ba

uer’ s profe ssional cer

tificates and suspending Grutzmacher ’s cer tificate and license f or three y ear s. On cr oss-motions for summary judgme nt, the trial court g rante d summary judgme nt for the acc ountants and denied summary judgme nt for the Boa rd on the acc ountants’ claim that the Boa

rd violated the Texas Open Meeting s Act (“TO MA” or the “Ac t”). See generally Tex. Gov’t Code Ann. §§ 551.001-.146 (West 2004 & Supp. 2011). The trial court held that the Boa rd 1

We c it e to th e c u

rre nt v e r s io n s o f th e s ta

tu te s a n d a d mi n is tr a ti v e c o d e f

o r c o n v e n ie n c e 1 b e c a u s e th e r e h a

v e b e e n n o in

te r v e n in g a me n d me n ts th a t a r e ma te r ia l to o u

r d is p o s it io n o f th is a

p p e a l. 2violated the Ac t and dec lare d the Boa rd’s order s sanctioning the acc ountants void. The trial cour t also enjoined the Boa

rd from re- prosec uting the acc ountants for the conduct that was the subject of the Boa rd’s order s and dismiss ed the rema inder of the acc ountants’ claims as moot. The Boa rd and the Boa rd members (collec tively , the “B oard” ) appea l the final judgme nt, arg uing that the trial court should have g rante d its summary -judg ment motion beca use the evidenc e established that the Boa rd (1) publicly delibera ted and publicly voted on its order s sanctioning the acc ountants; and (2) called the challeng ed execu t i v e s essi ons to obtain leg al advice on matters subject to the attorney -client privileg e, as authorized und er t h e Act. Alterna tively , the Boa rd arg ues that the evidenc e at least raises a fac t question sufficie nt to defe at the acc ountants’ claim that the executive sessions wer e not authorized under the Act. The Boa rd also challeng es the perma nent injunction prohibiting it f rom taking any further action ag ainst the acc ount an t s , even if any future prosec ution by the Boa rd

c o mp li e d w it

h th e A c t. We w il l r e v e r s e th e tr ia l c o u r t’ s ju d g me n t a

n d r e ma n d f o r f u r th e r p r o c e e d in g s beca use we find that the ac countants fa iled to establish their TOMA c laim.

BACK GR OUND This case conce rns actions taken by the acc ountants when they audited Enron while working at Ander sen. During the time period rele vant to the Boa rd’s action ag ainst them, Ba ss and 2

Enron, which beg an as a natural-g as pi peline operator, had transfor med i tself during t he 2 1990s into a t ra d i n g and investment cong lomerate with a larg e volume of trading in the ener g y business. U.S. v. Arthur Andersen, LLP , 374 F.3d. 281, 284 (5th Cir. 2004), rev’ d on other grounds , 544 U.S. 696 (2005). On October 16, 2001, Enron publicly announce d that it had incurre d a thirdquarte r loss of $683 milli on an d wa s t ak i ng a non-re curr ing char g e of $1.01 billion, leading to a sharp decline in its stock price

. Newby v. Enron Corp. 542 F.3d 463, 466 (5th Cir. 2008); see also J oel G. Siege l & J ae K. Shim, Dictionary o f A ccounting Terms 299 (3rd ed. 2000) (def ining “n o nrec urring char g e” as “income statement item that is either unusual in nature or infreque n t i n occur renc e”)

. Shortly afte r this announce ment, the Wall Street J ournal published a series of article s 3Ba

uer wer e partne rs at Ander sen and wer e cer tified public acc ountants, and Grutzmacher was a
manag er at Ander sen. Grutzmacher was not a cer tified public acc ountant when she worke d on the
Enron audit, but she beca me one later. Af

t er E n ro n’s collapse, the Boa rd investiga ted the audits perf ormed by the ac countants, and the Boa rd’s staf f initiated disciplinary

action ag ainst them. The acc ountants participa ted in a consolidated contested- case hear ing befor e a panel of two administrative law judge s (“A L J s ” ) a t th e State Offic e of Administrative Hea ring s (“SOAH ”).
See Tex. Occ

. Code Ann. § 901.508 (West 2004) (providing rig ht to hear i n g fo r p erson ag ainst whom Boa

rd proposes taking disciplinary action); 22 Tex. Admin. Code § 519.40(a) (2011) (Texas
State Bd. of Pub. Acc ountancy , Gene ral P rovisions) (appointing SOAH as fac tfinder for B oard in contested case s under section 901.508 but explaining that Boa rd reta ins rig ht to deter

mine sanctions and make final dec ision in any contested c ase) . The AL J s issued proposals for de cision (“PFD s”)

a f te r th e h e a r in g . T h e y c o n c lu d e d th a

t, a lt h o u g h th e a c c o u

n ta n ts w e r e “ a

b le a u d it o r s , ” th e y h a d ma d e

asser ting that Enron and rela ted entities had eng ag ed in various fra udulent transac tions. Newby , 542 F.3d at 466. On Oct o b er 31, 2001, the Securities and Ex chang e Commi ssion (“SEC”) beg an a formal investiga tion of Enron. In re Enron Corp. Secs. , 465 F. Supp. 2d 687, 700 (S.D. Tex. 2006). On November 8, 2001, Enron announce d that it would restate its financ ial statements for 1997, 1998, 1999, and 2000 and the first two quarte rs of 2001 to include the financ ial activities of three other entiti e s ( Ch e wco, J EDI , and L J M1) that should have been repor ted on Enron’s consolidated financ ial statements. In re Enron Corp. Secs., Deriv. & ERISA Liti g. , 540 F. Supp. 2d 800, 822 & n.23 (S.D. Tex. 2007). Enron filed for bankruptc y on Dec ember 2, 2001. Newby , 542 F.3d at 4 6 6

. At that time, Arthur Andersen, L L P, was one of t he larg est acc ounting and consulting firms in the world. A r th u r A n d

e r s e n , 3 7 4 F

. 3 d

. a

t 2 8 4

. I n 2 0 0 2 , th e f

ir m w a s c o n v ic te d o f o n e f

e lo ny c o u n t o f o b s tr u c ti n g the S EC’s investiga tion into t he collapse of Enron, which effec tively put the firm out of busi ness. See id. ; see also Christopher A. Wray & Robert K. Hur, Corporate Criminal Prosection in a PostE n r o n W o r ld : Th e Th o m

p s o n M e m o in Th e o r

y a n d P r a c ti c e , 4 3 A m. Cr im

. L

. Re v . 1 0 9 5 , 1 0 9 7 ( 2 0 0 6 ) (n o t i ng that Ander sen’s conviction eff ectively destroy ed it and turned acc ounting’ s “B ig 5” into “B ig 4” ). 4serious mistakes in profe ssional judgme nt that contributed to the materia l misstatements in Enron’s

1997 and 1998 financ ial statements and to the subsequent need to restate those financ ial statements.

The AL J s f

o u n d tha t Ba ss and Ba

uer violated and that Grutzmacher failed to confor m her conduct to a number of g ener ally acc epted auditing standards and acc ounting principles, which the Boa rd has adopted as profe ssional standards. We will briefly s u m m arize some of the AL J s’ finding s and conclusions to provide context for the Boa rd’s decision to sanction the acc ountants. Much of the discussion in the PFDs focuse d on the acc ountants’ revie w of a transac tion that involved
Enron’s enter ing into a partne rship ca l l ed J E DI wi th a company called Chewco. J EDI was an investment vehicle for an E n ron division called Enron Capital & Trade

. Enron had previously partne red with an outside company in J EDI , which had allowed it to trea t J EDI as a nonconsolidated

en t ity for acc ounting purposes, also known as an “off -bala nce- sheet entity ,” meaning t h at i t s losses could be kept off Enron’s f inancial state ments. When the out side company withdrew from
J E DI, E n ro n decide d to form Chewco to be its partne r in J EDI

. To maintain J EDI ’s status as a nonconsolidated entity , it was imperative that Chewco achi e v e and maintain “spec ial purpose entity ” (“SPE”) status, which require d that (1) at least three perc ent (3%) of its equity be owned by an entity that was independe nt of Enron and (2) the outside equity investment reta in substantive ri s k s an d

rew ards of owner ship for the life of the SPE (i.e., the outside equity must re main at risk and not be supported by a letter of credit or ot her form of guar anty on the i n v es t ment). The AL J s found t hat “Chewc o’s SPE status was materia l to Enron’s financi al s t atements beca use even a one-dollar reduc tion of Chewco’ s independe nt equity at risk below the require d 3% wo u ld cause a materia l misstatement in the financ ial statements.” I t is undi sputed that Chewco did not in fac t have the

5require d 3% independe nt equity at risk to qualify for off- balanc e-she et trea tment in 1997 and 1998. Ultimately , in 2001, when Ba uer saw for the fi rst time a side ag ree ment that clea rly showed Chewco did not qualify as an SPE, he informed Enron manag ement that the financ ial statements for 1997 and 1 9 9 8 had to be restated because both Chewco and J EDI had to be consolidated with Enron for both y ear s. O n e c r u c ia l e r r o r le a d in g to th e ma

terial misstatements occur red when the a c c o u

n ta n ts violated and fa i l ed t o confor m to profe ssional standards when verify ing whether Enron had
proper ly trea ted J EDI and Chewco as off- balanc e-she et entities. I n essenc e, the AL J s found that the

acc ountants place d to o m u ch relianc e on uncorr oborate d manag ement represe ntations conce rning the unavailability of C hewc o’s formation d o cu m ents and it s structure , owner ship, and financing

. 3
The AL J s also found that Ba uer and Ba ss violated standards rela ted to their desig n and supervision of the aud i t s , that they failed to proper ly assess Chewco’ s materia lity , and that they failed to discharg e their duty to audit for any transac tions that would adver sely aff ect Chewco’ s status as an SPE. The AL J s d et ermined that (1) Ba uer and Grutzmacher did not have sufficie nt competent evidenc e to conclude that Chewco’ s 3% equity was independe n t or at risk in 1997 or 1998, and (2) the acc ountants had acc ess to documents that contained information pertinent to the audit of Chewco’ s SPE status and that provided evidenc e that Chewco lacke d 3% independe nt equity at risk.
Moreove r, the AL J s conclude d that any collusive fra ud by Enron’s manag ement, employ ees, or third parties was not the primary cause of the auditors’ failure to confor m to the profe ssional standards.

The PFD s descr ibe in detail the AL J s’ finding s and conc lusions about the vary ing le vels 3 of re sponsibili ty

and er rors on the pa

rt of ea ch of the acc ountants.

6Despite these finding s, the AL J s rec ommended that Ba s s an d Ba u er should be

allowed to continue prac ticing public acc ountancy

. The only sanctions that they rec ommended

wer e that Ba ss and Ba

uer be admonished and pay an administrative penalty and costs. The ALJ s

rec ommended that all char g es ag ainst Grutzmache r b e dismiss ed beca use they conclude d that (1) Grutzmacher was not subject to discipline by the Boa rd in 1997 and 1998 when the audits wer e perf ormed since she was not licensed at that time, and (2) she was fi t to hold a cer tificate and
l i ce n s e u n d er s ec t i o n 9 0 1

. 5 0 2 o f t h e o cc u p at i o n s co d e. S ee T ex . Oc c. C o d e An n . § § 9 0 1

. 5 0 1 ( e s t a b l i s h i n g B o a

r d ’ s d i s c ip li n a

r y p o w e r s ) , . 5 0 2 ( 1 1 ) ( We s t 2 0 0 4 ) ( p r o v id in g th a t B o a r d “ m a y d i s c i p l i n e

a person under Section 901.501 for

. . . conduct indicating lack of fitnes s to serve the public as a profe ssional acc ountant”).

The Boar d met four t i mes to consider the PFDs before making its final decision in the case s. The Boa

rd’ s ru l es require that “[a]ll final decisions and order s shall be made during a public meeting duly noticed” as require d by the Act. 22 Tex. Admin. Code § 5 1 9

. 7 2(a) (2011) (Texas State Bd. of Pub. Acc ountancy , Final Dec isions & Orde rs). Any party to the contested- case hear ing may reque st oral arg ument befor e the Boa rd makes its final deter

mination. Id. § 519.71(d) (2011) (Texas State Bd. of Pub. Acc ou n t an cy , Ex ceptions & Replies). Eac h of t he four meeting s

was a public meeting , and the ac co u n t an t s ’ counsel and the Boa rd’s litigation counsel prese nted oral ar gu m ent at all of the meeting s. At eac h of the meeting s, the Boa rd went into executive session—i.e., a closed meeting —to meet privately with its counsel , in v o k in g T O M A s e c ti o n 551.071 and stating that the Boa

rd would be seeking its counsel’s advice on matters subject to the attorney

client privileg e. Tex. Gov’t Cod e An n. § 551.071 (West 2004) (allowing g overnme ntal body to consult privately

with its attorney

in cer tain situations).

7During the l ast two meeting s, the Board publicly considere d the PFDs. The Boa rd debate d what ty

pe of sanctions to impose on the ac co u n t an ts and whether it had jurisdiction over Grutzmacher during the third meeting

. I t publicly voted to revoke Ba uer’ s and Ba ss’s licenses and
to suspend Grutzmacher ’s license for three y ear s. I t direc ted its counsel to prepa re draf t order s for its approva l at the next open meeting

. At the final meeting , the Boa rd’s counsel publicly explained the draf t order s that she had prepa red based on the Boa

rd’s direc tions, which the Boa rd had
g iven publicly

at the prior me eting . The B oard publicly discussed t he propose d order s, hear d oral
arg ument from both sides ag ain, beg an discussing the case s of two acc ountants who are not parties
to this case , and had a final exe cu tive session to rec eive leg al advice from its counsel. After the executive session, the Boa rd returne d to the public session and discussed the two non-par ties’ case s. After deciding how to handle those two c ases, the B oard a g ain discussed the final revisions to the draf t order s for Ba ss, Ba

uer, and Grutzmacher

. I t then publicly voted to acc ept eac h revised order

. Although th e Boa

rd adopted most of t he findings and conclusions proposed by the
AL J s, the Boa

rd disag ree d with the AL J s’ finding that Grutzmacher was qualified to prac tice public

acc ountancy despite the audit err ors and with the AL J s’ conclusion that the Boa rd had no jurisdiction

over Grutzmacher ’s prelice nsure conduct. See id. § 2001.058(e) (1) (West 2008) (allowing ag ency to chang e finding or conc lusion made by AL J or t o modify AL J ’s orde r if ag ency

deter mines AL J did not proper ly apply or interpre t a pplicable law, ag ency rules, or prior administrative decisions);

see also 22 Tex. Admin. Code §§ 519.40(a) , .72(f) (providing that Boa rd shall make final decision
in all disciplinary matters, including assessment of sanctions). The Boa rd deter mined that the AL J s “fa iled to apply or interpre t applicable law, rules, and policy ” when deter mining Grut z mache r’s

8fitness to prac tice and rec ommending an appropr iate sanction for her prelice nsure conduct.

Simi larl y , t h e Boa

rd deter mined that, contra

ry to the AL J s’ conclusions in the PFD, the AL J s’ finding s supported the imposit ion of di scipline on Ba uer and Ba ss. The Boar d decide d the AL J s’ conclusion that discipline was not neede d to deter further violations was a misapplication of applicable law, rule s, and policy

. 4

I n al l t h ree order s, the Boa rd stated the specific rea sons and leg al basis for the

mo d if ic a ti o n s th a t it ma d e , n o ti n g th a

t it d id s o to c o mp ly w it

h g o v e r n me n t c o d e s e c ti o n 2 0 0 1

. 0 5 8 ( e )

. See Tex. Gov’t Code Ann. § 2001.058(e) (re quiring ag ency to state in writing rea son and leg al basis for chang es m ade to AL J ’s findi ngs and conclusions). I t also explained in all three order s that its purpose is to protec t the public interest and to e nsure that the public c an re ly on the attest ser

vices provided by cer

tified public acc ountants for assura nce that the manag ement of commerc ial entities has rea sonably descr ibed those entities’ financ ial status. See Tex. Occ

. Code An n . § 9 01.005(b) 5 (West 2004); 22 Tex. Admin. Code § 501.51 (2011) (Texas State Bd. of Pub. Acc ountancy , Preamb l e an d Gene ral P rinciples). I n addition, the Board noted that the s oundness and reliability

I n eac h of the three order s, the Boa rd also deleted finding s of fac t and conclusions of law 4 conce rning rela ted-pa

rty transac tions beca

use “it deter

mined that the [AL J s] failed to proper ly apply or interpre t a

pplicable law, rules, and policy in de termining [t his] issue.” The Boa rd noted that its order as i ssued di d not impose sanctions based upon the om itted fin d i n gs an d conclusions, which wer e thus immaterial and unnece ssary to its deter minations ag ai n s t th e acc ountants, citing Sanchez v. Texas State Board of Medic al Examiners , 229 S.W .3d 498 (Tex. App.—Austin 2007, no pet.). The occupations code define s “attest ser vice” as “an audit or ot her eng ag ement required 5 by the board to be perf

ormed in accor d ance with the auditing standards adopted by the Americ an I nstitut e of Certified Public Acc ountants [AI CPA] or another n at i onal acc ountancy org anization rec og nized by the board,” as well as other eng ag ements or assura nce service s that the Boa

rd require s to be perf

ormed in acc ordanc e with standards for acco u nting and revie w service s, attestation eng ag ements, or profe ssional standards adopted by AI CPA or another national org anization. Tex. Occ . Code Ann. § 901.002(1) (A) ( West S upp. 2011); see also id. § 901.002(1)( B) -(D)

. 9of the financ ial sy stem and the str en gt h o f the economy and the public marke ts depend upon the

competenc e, integ rity , and expertise of the cer ti fi ed p u b l ic acc ountants who attest to financ ial
statements in Tex as . T ex . Oc c. Code Ann. § 901.005(b). I n both the Ba uer and Ba ss order s, the
Boa rd explained i t s view that the AL J s failed to proper ly apply the law beca use the AL J s’

rec ommended sanction was not consistent with their finding s that both acc ountants had a high level of responsibility and had committed serious violations—especially considering that Ander sen itself had assessed the audit as being a high- risk audit. Ba sed on these deter minations, the Boa

rd revoke d
B a s s ’ s a n d B a u e r ’ s p r o f e s s io n a l cer

tificates and imposed administrative costs and monetary penalt ie s
ag ainst them. See id. § 901.501(a) (1), (9), (11) (establishing Boa rd’s power to take these disciplinary actions). I n Grut z m ache r’s case, the Boa rd determined t hat t he AL J s’ findi ng s about her conduct

an d h er attest service s during the audit supported the conclusion that she eng ag ed in co n d u ct in d ic a ti n g la c k o f f

it n e s s to s e r v e th e p u b li c a s a p r o f

e s s io n a l a c c o u

n ta n t. B a s e d o n it s d e te r

mi n a ti o n s , the Boa rd suspended Grutzmacher ’s cer tificate and license for three y ear s but probate d the penalty ,

ex plaining that “prote ction of the public interest demands the ty pe of scrutiny , acc ountability ,

an d deter rent eff ect that a three -y ear probate d suspension can provide.” See id. § 901.501(a) (2 ) (establishing Boa

rd’s powe r to suspend ce rtificate and license ). After the Boa

rd issued its orde rs, the acc ountants filed a joint motion for rehe aring

. The Boar d overr

uled the motion, and ea ch of the acc ountants subsequently filed a suit for judicial revie w under the administrative proce dure act. See Tex. Gov’t Code Ann. § 2001.174 (West 2008) (establishing that scope of revie w is substantial-evidenc e revie w); see also Tex. Occ

. Code Ann. § 9 0 1

. 5 5 6 (a ) (West 2004) (allowing appea l of Boa rd decision). The suits for judicial revie w

10inclu d ed a TOMA claim in which the acc ountants asser ted that the Boa

rd violated the Act by delibera ting on the merit s o f t h e PFDs “almost exclusively ” in “leng thy closed sessions” and
imm ed iately voting during the open session “to cast the SOAH decision aside without any meaning ful discussion.” The acc ountants contende d that “these improper de liberations” r ender ed the Boa rd’s final order s void beca use “[a]ny action taken as a result of the improper closed session is voidable and should be considere d void” under TOMA section 551.141. See T ex . Go v ’t Code
Ann. §§ 551.002 (re quiring g overnme ntal body ’s meeting s to be open except as provided by Act),
.141 (establishing that ac t i o n t ak en by g overnme ntal body in violation of Act is voidable), .142 (West 2004) (allowing i n t er es t ed person to bring mandamus or injunction action to preve nt or

reve rse violation).

B o th sides filed traditional motions for partial summary judgme nt o n th e a c c o u n ta n ts ’
TOMA claim. I n their motion, the acc ountants assert ed that the Boa rd conducte d “illeg al secr et del i b er ations reg arding its decision on [t he acc ountants’] contested case s” at eac h of the four public meeting s by enter ing into executive sessions t o consult with its counsel, actua lly decide d the acc ountants’ case s during the final executive s ession, and could not prove any aff irmative defe nse involving an exception to the Act. I n particula r, the acc ountants asser

ted that the attorney

consultation exception provided by section 551.071 of the Act did not apply to the Boa rd’s executive sessions. See id. § 551.071. The acc ountants alleg ed that the “impermissible, secr et delibera tions” and the Boa

rd’s alleg ed decision on the case in executive session we re separ ate violations of the
Act. The acc ountants reque sted that the trial court find that the Boa rd’s order s wer e incura

bly void and prohibit the Boa

rd from taking further action ag ainst the acc ountants beca use the “illeg al, secr et

11delibera tions ha[d] fore ver tainted the Boa rd’s ability to rende r a valid order in this case .” The Boa rd contende d in its motion that (1) all of the challeng ed executive sessions w ere lawful under TOMA section 551.071, (2) it delibera ted and voted in open session, and (3) the acc ountants had no viable claim for injunctive or

mandamus re lief ag ainst the individual Boar d members.
I n its final judgme nt g ranting the acc ountants’ motion for partial summary judgme nt and deny ing the Boa

rd’s motion, the trial cour t stated that it found “as a matter of law [t he Boa

rd] violated the Open Meeting s Act.” Ba sed on that finding , the trial court reve rsed the Boa rd’s action and decla red the three order s sanctioning the acc ountants to be void. The trial court also “re strained and enjoined [t he Boa

rd] from re- prosec uting the [accountants] for the alleg ed violations that wer e the subject of the underly

ing contested- case proce eding s that resulted in the order s” sanctioning the

acc ountants. The trial court dismiss ed the rema ining claims broug ht by the acc ountants as moot and denied a ll relief not expressly g rante d in the final judg ment. The B oard a ppeals.

DISCUSSIO N
I n two issues, the Boa

rd challeng es the trial court’s denial of its summary -judg ment

mo ti o n a n d g r a n t o f th e a c c o u

n ta n ts ’ s u mm a r y - ju d g me n t mo ti o n . I

n it s f ir s t is s u e , th e B o a

r d c o n te n d s th a t th e tr ia l c o u r t s h o u ld h a

v e g r a n te d it s s u mm a r y - ju d g me n t mo ti o n b e c a

u s e th e e v id e n c e e s ta

b li s h e d that the Boa

rd (1) publicly delibera ted ab o u t t h e substance of the PFDs and publicly voted on chang es to them at its third and fourth meeting s and (2) called the challeng ed executive sessions to obtain leg al adv i ce on matters subject to the attorney -client privileg e, as authorized under section 551.071 of the Act. I n its second issu e, t h e Boa rd challeng es the trial court’s decision to

12perman ently enjoin the Board from taking any further action aga inst the accountants based on the

violations found by

the AL J s, even if a

ny future pr osecution by

the B oard c omplied with the Act. The acc ountants asser

ted in the ir summary -judg ment motion and continue to asser t

on appea l that the Boa

rd’s alleg edly illega l de liberations and its alleg ed secr et vote tainted its final order s and rend er ed them incura bly void. We will consider whether the acc ountants’ alleg ations provided a sufficie nt basi s fo r t h e trial court to decla re the Boa

rd’s order s void. As our analy sis below will demonstrate, the dispositi ve question is whether the acc ountants es t ab l i s h ed that the
Boa rd’s fina l orders w ere actions take n in violation of the Act and thus voidable.

Stand ard of review

We reviewthe trial cour

t’s summary

judgme nt de novo, taking as true a ll evidence favor able to the nonmovant and indulging ever y rea sonable infere nce and resolving any doubts in the
nonmovant’s favor

. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). Summary judgme nt is proper whe n the evidenc e shows that ther e ar e no dis puted i ssues of mater ial fac t and the m ovant i s entitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a(c ). Movants, like the

acc ountants, who seek traditional summary judgme nt on their own claim, have the initial burden of establishing their entitlement to judgme nt as a matter of law by conclusively establishing eac h element of that claim. See MMP, Ltd. v. Jones , 710 S.W .2d 59, 60 (Tex. 1986) (per curia m). I f the
movant establishes the rig ht to summary judgme nt, the burden shif t s t o t h e n onmovant to raise a f a c t i s s u e b y

in tr o d u c in g c o n tr o v e r ti n g e v id e n c e o f p r o b a

ti v e f o r c e . O lym

p ic W a s te S e r v s
. v
. Ci ty o f Grand Saline , 204 S.W .3d 496, 501 (Tex. App.—Ty ler 2006, no pe t.). A movant, like the Boa rd, that seeks traditional summary judgme nt ag ainst another party ’s claim, must conclusively neg ate at

13least one element of that claim or conclusively establish eac h element of an aff irmative defe nse. See Shah v. Moss , 67 S.W .3d 836, 842 (Tex. 2001); Centeq Realty, Inc. v. Siegler , 899 S.W .2d 195, 197 (Tex. 1995). I f the movant meets this burden, the burden shifts to the nonmovant to raise a g enuine issue of materia l fac t on the neg ated element or aff irmative defe nse to prec lude summary judgme nt. Centeq Realty , 899 S.W .2d at 197.

When both sides move for summary judgme nt, eac h party must car ry its own burden, and neither party can preva il beca use of the other’s failure to discharg e its burden. Olympic W aste , 204 S.W .3d at 501. When the trial court g rants one motion and denies the other, we consider both sides’ summary -judg ment evidenc e. Valence Operating Co. , 164 S.W .3d at 661. I f we deter mine that the trial court err ed, we rende r the judgme nt that the trial court should have rende red. Id. I f we deter mine that a fac t issue prec l u d es s u m m ary judgme nt for either party , we rema nd the claim for trial. See University of Tex. Health Sci. Ctr. at Houston v. Big Train Carpet of El Campo, Inc. , 739 S.W .2d 792, 792 (Tex. 1987) (per curia m).

The accountants’ TOMA claim

I n its first issue, the Boa

rd asser ts that it, not the acc ountants, was entitled to summary judgme nt on the acc ountants’ TOMA claim. To provide context for the issues raised by the parties, we will brief

ly explain the Act’s purposes a nd structure

. Meeting s of g overnme ntal bodies g ener ally mus t be open to the public. See Tex. Gov’t Code Ann. § 551.002. The Act’s purposes are to provide public acc ess to and incre ase public
kn o wl ed ge o f g overnme ntal decision-making

. City of San Antonio v. Fourth Ct. of Appeals , 820
S.W .2d 762, 765 (Tex. 1991). The intended benef iciarie s of the Act are members of the interested

14public, not individual citiz ens such as the ac countants in this case. See id. (noting that Act has no

due-pr ocess implications). The law require s openness, not se cre cy , when a state ag ency

makes its decision in a contested administrative case , but there are cer tain narr ow exceptions to that rule,

one of which is provided by section 551.071. See Ack er v. Texas W

ater Comm’n , 790 S.W .2d 299, 299-300 (Te x . 1990).

The Act provides that “[e]very reg ular, specia l, or called meeting of a g overnme ntal b o d y s h a ll b e o p e n to th e p u

b li c , e xc e p t a s p r o v id e d b y th is c h a p te r . ” T e x. G o v ’ t Co d e A nn . § 5 5 1

. 0 0 2

. Section 551.071 of the Ac t expressly authorizes cer

tain closed sessions and pr ovides that:

A g over n me n ta l body may not conduct a private consultation with its attorney except: (1) when the g overnme ntal body seeks the a dvice of

its attorney

about: (A) pe nding or

contemplated litig ation; or (B ) a se ttlement offer ; or (2) on a matter in which the duty of the attorney to the g overnme ntal body under t h e T ex as Disciplinary Rules of Professional Conduct of the State Ba r of Texas clear ly

conflicts with this chapter

.

Id. § 551.071. This attorney -consultation exception inc orpora tes the attorney -client privileg e, i.e.,
an attorne y ’s dut y to prese rve the confide nces of a client. See Kil lam Ranch Props., Ltd. v. W ebb Cnty. , ___ S.W .3d ___ , No. 04-10-00324- CV, 2012 WL 1193722, at *8 (Tex. App.—San Antonio April 11, 2012, no pet. h.); Olympic W aste , 204 S.W .3d at 502; see also Tex. Att’y Gen. Op. No. J C0233 (2000). A g overnme ntal body may not eng ag e in a gene ral discussion of policy unrela ted to leg al matters in a closed session mere ly beca use its counsel is prese nt, but it may hold an executive

15session to se ek or re ceive its a ttorney ’s advice about either matters rela ted to a specific pending or

contemplated leg al proce eding or matters for which it se eks the attorney ’s leg al advice

. Tex. Att’y
G e n . O p . N o . JC- 0 2 3 3 ( 2 0 0 0 ) ( c it in g T e x. A tt ’ y G e n . O p . N o . JM- 1 0 0 ( 1 9 8 3 ) )

. “ [T ]h e c o mm u n ic a ti o n
must be rela ted to an opinion on law or leg al service s or assistance in some leg al proce eding .” Tex. Att’y Gen. Op. N o. J M-100 (1983). When conducting a closed meeting , a quorum of the g overnme ntal body must first convene in an open meeting for which p ro p er notice has been g iven. Tex. Gov’t Code Ann. § 551.101 (West 2004). The presiding office r must publicly announce that a closed meeting will be held and identify

the sec tion or sections of the Ac t under whic h the closed meeting is held. Id. A final action, decision, or vote on a matter upon which the g overnme ntal body delibera tes in a closed meeting may only be made in an ope n meeting that complies with the Act’s notice provisions. Id. § 551.102 (West 2004).

The Act provides sever al differ ent enfor ceme nt mecha nisms and reme dies. See generally id. §§ 551.141-46 (West 2004). “An action taken by a g overnme ntal body ” that violates th e Ac t i s v o i d ab l e. Id. § 551.141. The Act also allows “[a]n interested person . . . [t o] bring an action by mandamus or injunction to stop, preve nt, or reve rse a violation or threa tened violation of this chapter by members of a g overnme ntal body .” Id. § 551.142. I n addition, the Act esta blishes criminal penalties for cer tain conduct, including conspiring to ci rcumve nt the Act, knowing ly participa ting in a closed meeting not permitted under the Act or in a closed meeting in wh ich a

16cer

tified ag enda is not being kept or a tape rec ording being made if require d, or knowing ly disclosing
to the public the cer

tified ag enda or tape rec ording of a lawfully closed meeting

. Id. §§ 551.143-46. 6

The parties’ sum m ary-judgm ent burdens The pa rties dispute the ele ments that eac h is require d to prove to demonstrate the ir entitlement to summary judgme nt. The acc ountants asser t that they need only prove that the Boa rd conducte d a closed meeting and then the Boa rd must prove that the closed meeting was authorized by one of TOMA’s exceptions. The Boa rd takes the position that the acc ountants, to prove a claim under section 551.002, must conclusively establish that the Boa rd (1) conducte d a closed session (2) that was not authorized by one of TOMA’s exceptions. Both sides misstate the elements require d to establish a TOMA c laim seeking to void a g overnme ntal body ’s ac tion.

I n this case , the acc ountants soug ht summary judgme nt “ finding the Boa rd’s order s in th e ir c a s e s in c u

r a b ly v o id

. ” Se c ti o n 5 5 1

. 1 4 1 o f th e A c t e s ta b li s h e s th a

t a n a c ti o n ta k e n in v io la

ti o n 7

o f th e A c t is v o id a

b le

. S e e id

. § 5 5 1

. 1 4 1

. Co n s e q

u e n tl y , to s u c c e s s f

u ll y mo v e f

o r s u mm a r y ju d g me n t, 8
in addition to proving that the Boa rd met in a closed session, the ac co u ntants also had to conclusively prove that the Boa rd’s final order s we re ac t i o n s t hat violated the Act and thus wer e

v o idable. See W

eatherford v. City of San Marcos , 157 S.W .3d 473, 485-86 (Tex. App.—Austi n
A g overnme ntal body is not require d to ke ep a cer tified ag enda or make a tape rec ording 6 of the proce eding s of a closed meeting permitted under the attorney -consultation exception provided by section 551.071. Tex. Gov’t Code Ann. § 551.103(a ) (West 2004). The acc ountants also soug ht an injunction ag ainst any future a ction by the Boa

rd ag ainst 7 the acc ountants—even TOMA-c ompliant future action—which the trial court g rante d. The Boa rd challeng es the a

ppropriate ness of this injunction in it s second issue. The trial court stated in its order that it was reve rsing the Boa rd’s action and decla

ring the 8 Boa rd’s orde rs void beca

use the B oard violate d the Act.

172004, pet. denied) (holding vote taken in open session not rende red voidable by closed session); see

also Tex. Gov’t Code Ann. § 551.102 (providing that “a final action, decision, or vote on a matter delibera ted in a cl o s ed m ee t i n g under this chapte r may only be made in an open meeting ” that complies with Act). To defe at the Boa rd’s motion, the acc ountants had to prese nt evidenc e raising

a materia l fac t issue on any element of their claim that the Boa rd neg ated. Conversely , to defe at the

acc ountants’ summary -judg ment motion, the Boa rd had to at least raise a fac t issue rela ted to

an element o f t h e acc ountants’ claim; to succe ssfully move for summary judgme nt, it had to conclusively

neg ate a n element of

the ac countants’ c laim. 9

The need to prove

a voidable “action” taken in violat ion of th e Act
We now consider whether the acc ountants wer e entitled to summary judgme nt based

on their motion. There is no dispute that the closed sessions occur red; the only question is whether the acc ountants conclusively established the rema ining essential el em ent of their claim—that the

The statutory attorney -consultation exception is an aff irmative defe nse for which the Boa rd 9 b ea rs the burden of proof. See Kill am Ranch Props., Ltd. v. W ebb Cnty. , ___ S.W .3d ___ , No. 04-10-00324- CV, 2012 WL 1193722, at *8 (Te x . App.—San Antoni o April 11, 2012, no pet. h.); City of Farmers Branch v. Ramos , 235 S.W .3d 462, 466 (Tex. App.—Dallas 2007, no pet.); Olympic W aste Servs. v. City of Grand Saline , 204 S.W .3d 496, 504 (Tex. App.—Ty ler 2006, no pet.). Thus, the Boa rd also could have defe ated the acc ountants’ summary -judg ment motion by raising a fac t issue conce rning the statutory exception or could have succe ssfully moved for summary judgme nt by establishing eac h element of its aff irmative defe nse. And the acc ountants, afte r they established the elements of their TOMA claim, could have defe ated the Boa rd’s motion by prese nting evidenc e raising a materia l fac t issue on the Boa rd’s statutory -exception aff irmative defe nse. I n thi s case , although both sides contest whether the Boa rd’s executive sessions wer e authorized under the at t o rney -consultation exception, as previously mentioned, the dispositi ve issue is whether the acc ount an t s established as a matter of law that the Boa rd’s final order s wer e actions that violated the Act and thus wer e voidable. As a result, we need not examine the Boa rd’s aut h o ri t y t o call the execu t i v e s es s i o n s. See Tex. R. App. P. 47.1. There fore , we will examine only whether the acc ountants established as a matter of law that the Boa rd’s order s wer e actions violating the Act and whether the B oard c onclusively

neg ated that e lement of the a ccounta nts’ claim. 18Boa

rd’s final order s s an ctioning the acc ountants wer e actions taken in violation of the Act and thus voidable. The assumption underly ing the acc ountants’ summary -judg ment arg ument is that if the Boa rd’s closed sessions wer e not p ro p er under the Act, then any subsequent action by the
Boa rd was voidable. As a result, the acc ountants focus much of t h eir arg ument on whether the closed-me eting delibera

tions wer e “illeg al” beca use the closed meeting s did n o t s at isfy the require ments of the attorney -consultation exception or beca use the Boa

rd exceede d the scope of any permissible consultation with its counsel. The acc ountants’ assumption is incorre ct—proving that

a meeting violated the Act does not ne cessa rily rende r voidable all rela ted subsequent actions by a
go v ernmental body

. The Act provides a basis for voiding “ specific acts which violate [ TOMA]

. ”
Point Isabel Indep. Sch. Dist. v. Hinojosa , 797 S.W .2d 176, 182 (Tex. App.—Corpus Christi 1990, writ denied) (empha sis added) (holding that only those ac tions taken in connec tion with defe ctive portions of m eeting notice were voidable). I t does not , however, re n d er v oidable either defe ctive meeting s, see id. , or publicly made decisions that occur afte r closed-me eting delibera tions, see, e.g. , Burks v. Y arbrough , 157 S.W .3d 876, 882 (Tex. App.—Houston [14t h Dist.] 2005, orig

. proce eding [m and. denied]) (holding alleg edly im p r o p e r c lo s ed meeting did not provide basis to void subsequent
pay ments that h ad b een authorized at duly noticed meeting s); W eatherford , 157 S.W .3d at 486. The acc ountants asked the tri al co u rt to void the Boa rd’s order s, which means that they must establish that the order s themselves wer e actions taken in violation of the Act and thus voidable. See
W eatherford , 157 S.W .3d at 486 (“[E]ven if we assume that the City Cou n ci l v i o lated the Act’s

19closed session and notice provisions, we must still decide whether the Ci t y t o o k any ‘ac tion’ that

would be voidable.” ).

Se c ti o n 5 5 1

. 1 0 2 p r o v id e s th a t: “ A f in a l a c ti o n , d e c is io n , o r v o te o n a ma tt e r d e li b e r a

te d
i n a closed meeting under this chapte r may only be made in an open meeting that is h el d i n compliance wit h t h e n o t ice provisions of this chapte r.” Tex. Gov’t Code Ann. § 551.102. Thus, the statute contemplates that som e delibera tions may occur in executive session, but establishes that the final resolution of a matter must oc cur in ope n session. Board of Trs. v. Cox Enters., Inc. , 679 S.W .2d 86, 89 (T ex . App.—Texarkana 1984) (holding that Act “re quires that the actua l resolution of an ultimate issue confr onting a public body be made in public”), rev’ d in part on other
gr o u n d s , 7 0 6 S.W .2d 956 (Tex. 1986). TOMA “does not prohibit [t he Boa rd] members in an executive session from expressing their opinions on an issue or announcing how they expect to vote

on the issue in the open meeting , so long as the actua l vote or decision is made in the open session.” Id. ; see also, e.g. , W

eatherford , 157 S.W .3d at 485. Thus, to establish that the Boa rd’s order s violated the Act, the acc ountants must establish that “the actua l vote or decision” to adopt the order s was not made in open session. 1 0

Although a g roup could defe at the Act’s purpose by expressing their opinions in a closed 1 0 s essi on and then confirming the majority position by unanimous vote in the open session, t h i s potential difficulty in enfor ceme nt does not chang e our i n t er p reta tion of the statute when its meaning can b e asce rtained. Board of Trs. v. Cox Enters., Inc. , 679 S.W .2d 86, 89 n.4 (Tex. App.—Texarkana 1984), rev’ d in part on other grounds , 706 S.W .2d 956 (Tex. 1986). Fur thermore , if a g overnme ntal body eng ag ed in this prac tic e, it would usually be detec ted. Id. Preventing a g overnme ntal body ’s members from expr es s i n g t h eir opinions on an issue, including how they expect to vote, would unrea sonably limit g overnme ntal bodies from permissible delib er at i o ns in executive sessions. Id. at 89. The Act’s purposes of allowing public acc ess to and public knowledg e of g overnme ntal decision-making are fully serve d by requiring the “ac tual resolution of an ultimate issue” to be made in public. Id. 20The acc ountants relied on transcr ipts of the four meeting s to establish that the Boa rd
went into executive sessions at eac h meeting in v i o lation of the Act “and delibera ted [upon] and ultimately decide d [t he ac countants’] case s in e x ecutive session.” The transcr ipts a lso c ontain the
p u b li c d is c u s s io n s th a

t th e B o a r d h a d a t e a c h me e ti n g . T h e a c c o u n ta n ts d o n o t a ll e g e th a

t th e B o a r d ’ s final action, decision, or vote occur red during the closed sessions at the first three m ee t i n g s. Although the acc ountants asser t tha t “ illega l de liberations” occur red, they did not seek to void any decisions made at these meeting s. They soug ht only to void the Boa rd’s final order s. As explained above, alleg ations of improper closed delibera tions alone d o not provide a sufficie nt basis for voiding all subsequent rela ted actions. See, e.g. , Olympic W aste , 204 S.W .3d at 504 (holding closed session that violated Act did not rende r contra ct voidable when vote awa rding contra ct occur

red in open session afte r vi olation occur red) ; Burks , 157 S.W .3d at 882. As a result, t h es e m ee t ings are rele vant t o our decision only to the ex tent that they demonstrate the scope of public consideration that the B oard g ave to the a ccounta nts’ case s. At the first two meeting s, the Boa rd primarily hear d oral arg ument. The transcr ipt 1 1
from the third meeting shows that the Boa rd went into executive session shortly afte r convening the public meeting

. After a 45-minute clos ed s ession, the Boa rd returne d to open session, hear d oral
arg ument from b o th sides (lasting fiftee n minutes per side), and then publicly discussed eac h

None of the actions taken at the first two meeting s constituted “[a] final action, decision, 1 1 or vote.” Tex. Gov’t Code Ann. § 551.102 (West 2004). At the first meeting , the Boa rd decide d to postpone decision on the case and to reque st additional briefing from the parties. At t h e second meeting , the Boa

rd decide d to rema

nd Ba uer’ s case to SOAH to consider new evidenc e of an order issued by the SEC suspending his p ri v i l eg e to prac tice in front of the SEC for three y ear s and to abate the other c ases until the issue of the ne w evidenc e ag ainst Ba uer w as re solved. 21acc ountant’s case i ndividually

. The open session of t he meeting lasted t wo and a half hours. For

Ba uer, the Boa

rd members de bated a

t leng th whether

license r evoca

tion or suspension would be a

more appropr iate sanction. They also discussed the rea sons why a majority of the Boa rd members 1 2
believed that the AL J s’ sug g ested sanction was inconsistent with both a proper interpre tation of the law and the Boa

rd’s reg ulations. They then publicly voted to revoke Ba uer’ s license. For Ba ss, the
Boa rd conducte d a simil ar discussion and also had a leng thy discussion about whether his position

on the audit car

ried the same level of responsibility as Ba uer’ s did and thus should result in the same sanction. After delibera ting, the Boa rd publicly voted to revoke Ba ss’s license. For Grutzmacher , 1 3
the Boa rd members discussed her level of experience , whether she may have been put into a position

on the audit by Ander sen that she should not have been, the p o l i cy re asons for the Boa rd’s conclusion that it could consider Grutzmacher ’s prelice nsure violations and fitness to prac tice when deter mini n g a sanction, and the appropr iate sanction. The Boa rd then publicly voted to sanction Grutzmacher with a probate d three -y ear license suspension. All eig ht of the Boa rd members actively
p ar t i ci p ated in these discussions. The extensive debate among the Boa rd members that occur

red afte r the executi v e session and oral arg ument is conclusive evidenc e showing that the Boa rd members had not alre ady made final decisions reg arding the contested case s in the closed session. 1 4

For example, they discussed whether Ba uer could still perf

orm tax work if his license was 1 2 revoke d and what the proce ss was for apply ing for reinstateme nt of a revoked l icense

. They also debate d what eff

ect the mitigating fac tors that the AL J s included in the PFDs should ha ve on their decision about wha t sanctions to impose.

They continued to disc uss whether suspension was ac tually

a more sever e sanction than 1 3 r e v o c a ti o n a s p a r t o f th e ir d is c u s s io n a

b o u t w h e th e r B a

u e r a n d B a s s s h o u ld r e c e iv e th e s a me s a n c ti o n . The acc ountants did not asser t that the Boa

rd m ad e i ts final decisions conce rning the 1 4 acc ountants’ case s in the executive session that occur red during the third meeting

. And althoug h the 22At the beg inning of the fourth meeting , the acting chair man of the Boa

rd stated that the Boa rd was meeting to help its counsel finish draf ting the order s that she had prepa red based on the Board’ s direct ions to her at the t hird meeting

. The Boar d’s counsel ag ree d, stating that it was important for the Boa

rd to articula te in its order s its rea soning and leg al basis for any chang es being made to the PFDs, as require d by section 2 0 0 1.058(e) of the administrative proce dure act. The
Boa rd’s counsel then spoke about the draf t or ders that she had prepa red and verba lly cover ed eac h section of eac h order with the Boa rd. As they p u b l i cly discussed eac h section of eac h order , the
Boa rd’s counsel asked the Boa rd members to let her know i f t h e lang uag e in the order acc urate ly ref lected their direc tions or if chang es neede d to be made or additio n al information about their decision-making proce ss neede d to be added. The Boa rd members participa ted in discussions about various aspe cts of the thre e orde rs. At the ac countants’ counsel’s reque st, the Boa rd then a llowed

eac h side to speak for three minutes befor e continuing its delibera tions on order s for two acc ountants who are not parties to this case . The Boa rd went into executive session to g et leg al advice from its counsel about sanctions for those two non-par ties. When the y returne d to ope n session, the Boa rd picked up the discussion about the two non-par ty acc ountants. After that discussion conclude d, the
Boa rd’s counsel went over the chang es that she was making on the Ba uer, Ba ss, and Grutzamache r order s based on the Boa

rd’s previously g iven public g uidance , so that the Boa rd members could

Boa rd voted at this meeting t o i m p o s e differ ent sanctions on the acc ountants than those rec ommended by the AL J s, this vote was not “[a] final action, decision or vote” beca use the Boa

rd’s discussion of the case s continued at the fourth meeting and another vote was taken befor e the final lang uag e of the order s was approve d. Id. (empha sis added) ; see also Cox Enters., Inc. , 679 S.W .2d at 89 (conc luding Act require s actua l r esolution of ultimate issue confr onting public body to occur at public meeting ). 23confirm that the or ders we re drafte d as t hey wanted before a vote was taken on them. After some additional public discussion and cha ng es on ea ch orde r, the B oard publicly voted on the orde rs. The ac co u n t an t s contend that the Boa rd’s counsel’s comments to the Boa rd show that the Boa

rd used the open sessio n only to ratify the Boa rd members’ “sec ret straw poll.” The

acc ountants focus in particula r on the Boa

rd’s counsel’s comments at the fourth meeting , asser ting that her comments ref

lected what the Boa

rd had decide d in e x ecutive session. They also state that “the Boa rd never publicly made any decisions reg arding any aspec t of its order s in [t he acc ountants’]

case s prior to retre ating into executive session,” citing the transcr ipt from the fourth m ee t i n g and ignor ing the events of the third meeting

. I n fac t, the transcr ipt r efle cts that the B oard ma de public decisions about its order s at the third meeting immediately afte r exte n sive public delibera tions, publicly direc ted its counsel to draf t order s ref

lecting those decisions, returne d for the fourth meeting
to publicly discuss those draf ts and chang es that the Boa rd decide d in open session to make to them, and then publicly

voted on the fina l version of e ach of those draf

ts. The Boa rd’s public votes on the order s mandate summary judgme n t fo r the Boa rd and ag ainst the acc ountants on the TOMA-violation claim. The Boa rd’s p u b l i c delibera tions leading up to its public final decision wer e substantive and extensive. Speculation about the Boa rd’s communications with its counsel is not summary -judg ment evidenc e. Even if we assume, arg uendo, that the Boa

rd’s executive sessions either wer e not protec ted by the attorney -consultation exception

or exceede d the scope of per missibl e attorne y

consultation, the Boa

rd’s public votes on the or ders satisfy the Act’s require ment that “a final action, decision, or vote on a matter delibera ted in a closed

24meeting under this chapte r may only be made in an open meeting ,” and thus, the order s are not

voidable. See Olympic W aste , 204 S.W .3d at 504 (holding that while discussion of merits of proposed contra ct in executive session with leg al couns el v i o lated TOMA, open-se ssion vote to

awa rd contra ct did not violate TOMA and contra ct was not vo i d ab le); W eatherford , 157 S.W .3d

at 486 (ho l d ing even if council members expressed opinions in closed session and closed session with counsel violated Act’s ex ce ption and notice provisions, final vote occur red in open session and no voidable final action was taken) ; United Indep. Sch. Dist. v. Gonzalez , 911 S.W .2d 118, 128 (Tex. App.—San Antonio 1995, writ denied) (op. on reh’ g ) (holding no TOMA violation when vote took place in open session afte r any alleg ed violation in closed session occur red)

. Consequently , the

acc ountants did not establish the essential element of their TOMA claim of a voidable final action, and they wer e not e ntitled to summary judgme nt. I nstead, the Boa rd has conclusively neg ated this essential element of the acc ountants’ TOMA claim. Acc ording ly , we reve rse the trial court’s order and rende r partial summary judgme nt in favor of the B oard, c oncluding as a ma tter of law that the

acc ountants take nothing by their TOMA c laim.
We also reve rse (1) the portion of the trial court’s order reve rsing the Boa rd’s action and decla ring the Boa

rd’s order s void and (2) the trial court’s perma nent injunctio n re s t raining the Boa rd fr o m re -prosecuting the acc ountants for the alleg ed misconduct that was the subject of the order s. Under the Act, a trial court may g rant an injunction to stop, preve nt, or reve rse a violation or threa tened violation; we have deter mined that the acc ountants’ alleg ations of improper delibera tions that “for ever tainted the Boa rd’s ability to re n d er a v al i d order in this case ” did not

25establish that a voidable—i.e., reve rsible—violation occur red. Nor is there evidenc e in the rec ord 1 5
of any ong oing or prospec tive conduct that supports the need for a perma nent injunction to stop or
preve nt a violation or threa tened violation.

F in a ll y , a s a r e s u lt o f o u

r r e v e r s a l o f th e tr ia l c o u

r t’ s o r d e r d e c la

r in g th e B o a

r d ’ s o r d e r s void, the rema inder of the acc ountants’ claims are no longe r moot. We will rema nd the case to the trial court f

or consider ation of those cla ims.

CONCLUSION Having deter

mined that the trial court err ed by g ranting the acc ountants’ motion for
summary jud g ment, perma nently enjoining the Boa rd from further proce eding s ag ainst the

acc ountants, and deny ing the Boa rd’s motion for summary judgme nt, we reve rse those portions of the judgme nt. We rende r summary judgme nt for the Boa rd on the acc ountants’ TOMA claim, and 1 6

we re m an d the remainder of the case t o the t rial court for further procee dings consistent with this opinion. See Tex. R. App. P . 43.2(d).
Although we are reve rsing the injunction based on our holding that no reve rsible violation 1 5 occur red in the Boa

rd’s vote to sanction the acc ountants, we do not rea ch the merits of the Boa rd’s second issue challeng ing the appr opriatene ss of the perma nent injunction ag ainst future TOMAcompliant proce eding s as a r emedy for the B oard’ s past actions allege dly taken in violation of t he Act. This is beca

use we have determined that the account ants did not conclusively prove that the Boa rd took actions that v i olated the Act. Simi larly , as previously noted, we need not addre ss the parties’ arg uments about the applicability of the statutory leg al-c onsultation exception beca use the burden does not fall upon the Boa rd to prove this aff

irmative defe nse until the acc ountants establish the elements of their claim, which they did n o t

. See Tex. R. App. P. 47.1 (cour t of appea ls must hand down written opi nion that is as brief as p ra ct i ca b le but that addre sses ever y issue raised and nece ssary to final dispositi on of appe al). We do not addre ss th e p o rt i o n o f the judgme nt sustaining the Boa rd’s objection to and 1 6 motion to strike the aff

idavit of J ennife r Rigg s beca use the acc ou n t an t s did not challeng e that decision on appe al. 26__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton and Rose
Reverse d and Rende red in pa rt; Reverse d and Remande d in part Filed: F ebrua

ry 24, 2012

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