      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00276-CV



                                  J. Ray (Tex) Riley, Appellant

                                                 v.

       Commissioners Court of Blanco County, Texas; Paul Granberg; Bill Guthrie;
           Chris Leismann; James Sultemeier; and John F. Wood, Appellees


    FROM THE DISTRICT COURT OF BLANCO COUNTY, 424TH JUDICIAL DISTRICT
         NO. CV 07075, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                                          OPINION


               When deciding whether to purchase property in Johnson City, Texas, the

Commissioners Court of Blanco County (the “Commissioners Court”) held three meetings that

were closed to the public but were tape recorded. After conducting the meetings, the Commissioners

Court convened an open meeting and adopted a resolution authorizing the purchase of the property.

Subsequent to the passage of the resolution, J. Ray (Tex) Riley filed an open-records request seeking

copies of the recordings of the three closed meetings, but the Commissioners Court ultimately

denied that request.

               In response to the Commissioners Court’s decision, Riley filed a lawsuit alleging

violations of the Texas Open Meetings Act, seeking various declarations, requesting mandamus

and injunctive relief, and asking that copies of the recordings of the closed meetings be made

available to him and to the public. This suit was filed against the Commissioners Court as well as
commissioners of the Court during the relevant time period in their official capacities. Those

individuals were Paul Granberg, Bill Guthrie, Chris Leismann, James Sultemeier, and John F. Wood

(the “Commissioners”).

               In response, the Commissioners Court as well as the Commissioners filed a plea to

the jurisdiction contending that Riley’s open-meetings claims against the Commissioners Court

were barred by governmental immunity. In addition, in their plea, the Commissioners Court and

the Commissioners urged that the district court did not have jurisdiction over Riley’s declaratory

claims because those claims were redundant of his open-meetings claims. Finally, the Commissioners

Court and the Commissioners asserted that the district court did not have jurisdiction over Riley’s

mandamus and declaratory claims because Riley failed to properly present those claims to the

Commissioners Court before filing suit. See Tex. Loc. Gov’t Code Ann. § 89.004 (West 2008)

(governing presentation of claims against county or county official in official capacity).

               After convening a hearing regarding the plea, the district court granted the plea on

all of the bases alleged and dismissed for lack of subject-matter jurisdiction all of Riley’s claims

against the Commissioners Court as well as his declaratory and mandamus claims against the

Commissioners. Subsequent to the district court’s ruling, Riley filed this interlocutory appeal. See

Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2012) (authorizing interlocutory

appeals of orders granting or denying pleas to jurisdiction filed by governmental unit); Texas A&M

Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 845 (Tex. 2007) (equating state official sued in official

capacity with governmental entity under subsection 51.014(a)(8)).

               On appeal, Riley challenges the district court’s granting of the plea to the jurisdiction

by arguing that his claims against the Commissioners Court are not barred by governmental

                                                  2
immunity, that his declaratory-judgment requests are not redundant of his other claims, and that the

presentment provision relied upon by the Commissioners Court and the Commissioners does not

apply to the current suit.


The Open Meetings Act Waives Immunity

                As mentioned above, Riley asserts that the district court erred by granting the plea

with respect to his open-meetings claims because the Commissioners Court is not immune from his

suit. In supporting the district court’s ruling, the Commissioners Court asserts that Riley’s claims

against it are ultra-vires claims because they contend that the Commissioners Court violated the

open meetings act. Accordingly, the Commissioners Court asserts that those claims may not be

brought against it and may only be brought against government officials in their official capacities.

See Texas Dep’t of Ins. v. Reconveyance Servs., Inc., 306 S.W.3d 256, 258-59 (Tex. 2010) (stating

that ultra vires suits “may not be brought against a governmental unit possessed of sovereign

immunity, but must be brought against the allegedly responsible government actor in his official

capacity”); City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009) (explaining that

“governmental entities themselves—as opposed to their officers in their official capacity—[are]

immune from” ultra vires suits). After asserting that Riley’s claims are ultra vires and may not be

pursued against the Commissioners Court, the Commissioners Court contends that the provision of

the open meetings act relied on by Riley when pursuing his open-meetings claims supports this

proposition because that provision specifies that an “interested party . . . may bring an action by

mandamus or injunction to stop, prevent, or reverse a violation . . . by members of a governmental

body.” See Tex. Gov’t Code Ann. § 551.142(a) (West 2012) (emphasis added).

                                                 3
               For the reasons that follow, we disagree with the Commissioners Court. While it is

true that suits alleging ultra-vires claims must be brought against government officials and may not

be pursued against government entities when the entity is immune from suit, the prohibition against

filing suit against a government entity does not apply when the legislature has waived the entity’s

immunity. Although the Commissioners Court correctly points out that a provision of the open

meetings act authorizes actions against members of a governmental body, this Court has explained

that the open meetings act waives immunity for violations of the act and authorizes suits against

governmental bodies. See Hays Cnty. v. Hays Cnty. Water Planning P’ship, 69 S.W.3d 253, 257-58

(Tex. App.—Austin 2002, no pet.) (explaining that petition gave fair notice of claims and overcame

county’s assertion of immunity); City of Austin v. Savetownlake.org, No. 03-07-00410-CV,

2008 Tex. App. LEXIS 6471, at *17 (Tex. App.—Austin Aug. 22, 2008, no pet.) (mem. op.)

(explaining that open meetings act “expressly waives sovereign immunity to allow interested

persons . . . to bring suit against a governmental body to reverse a prior violation of the act”); see

also Gillium v. Santa Fe Indep. Sch. Dist., No. 01-10-00351-CV, 2011 Tex. App. LEXIS 3607,

at *19 (Tex. App.—Houston [1st Dist.] May 12, 2011, no pet.) (mem. op.) (concluding that trial

court erred by dismissing open-meetings case filed against school district because petition alleged

open-meetings violation and “immunity is waived for such claims”); cf. Tex. Gov’t Code Ann.

§§ 551.001(3) (defining governmental body as including “a county commissioners court”), 551.104(b)

(empowering district courts to order that “governmental body make available to the public”

recording of closed meeting), 551.141 (West 2012) (stating “action taken by a governmental body”

in violation of open meetings act is voidable).



                                                  4
                For that reason, we believe that the district court erred by granting the plea with

respect to Riley’s open-meetings claims against the Commissioners Court. Accordingly, we sustain

Riley’s first issue challenging the district court’s dismissal of his open-meetings claims pertaining

to the Commissioners Court.1


Riley’s Declaratory Claims Are Redundant of his Open Meetings Claims

                In his second issue, Riley urges that the district court erred by granting the plea

and dismissing his declaratory-judgment action on the ground that it was redundant of his open-

meetings claims.

                Regarding his open-meetings allegations, Riley presents four claims. In the first claim

of Riley’s petition, Riley alleged that the Commissioners Court and the Commissioners violated the

open meetings act by providing inadequate notice of their closed meetings, that the absence of notice

prohibited the Commissioners Court from properly holding a closed meeting, and that the recordings

of the meetings should be made available to the public because the recorded meetings were not

properly closed to the public. In his second claim, Riley alleged that the three closed meetings did

not fall under the statutory exception allowing closed meetings under certain circumstances when

the meeting concerns the purchase of real property, and Riley also sought mandamus and injunctive

relief to “stop, prevent, or reverse past, present, and future violations” of the open meetings act. See

Tex. Gov’t Code Ann. § 551.072 (West 2012). In his third claim, Riley requested the district court


        1
           In his first issue, Riley also challenged the district court’s decision to dismiss his declaratory
claims against the Commissioners Court. Given our conclusion in the next section that the declaratory
relief that Riley sought is redundant of his open-meetings claims, we need not address whether the
district court erred by concluding that the declaratory claims were barred by sovereign immunity.

                                                     5
to find that the Commissioners Court’s decision to close the meetings violated the open meetings

act and was a voidable act. See id. § 551.141 (explaining that actions taken by governmental body

in violation of open-meetings requirements are voidable). In his final claim, Riley urged the district

court to determine that the Commissioners Court’s actions violated the provision of the open

meetings act requiring that a final vote “on a matter deliberated in a closed meeting . . . may only be

made in an open meeting that is held in compliance with the notice provisions.” See id. § 551.102

(West 2012).

               In his third claim, Riley does request a declaration, but his declaratory request seems

to be referencing relief that would be provided in the final judgment if his open-meetings claims are

successful. In particular, Riley requested the district court to declare that the Commissioners Court’s

decision to close the meetings violated the open meetings act, to declare that those actions are void,

and to reverse those actions. Riley only explicitly referenced the declaratory judgments act in his

fourth claim. Accordingly, that claim is arguably the only one seeking declaratory relief under the

act. In any event, his request for declaratory relief is intertwined with his open-meetings arguments.

Specifically, Riley asked the district court to declare that the Commissioners Court’s action violated

the provision of the open meetings act requiring that a final vote be made in an open meeting that

was called in compliance with the governing notice requirements and to declare the rights of the

parties “in respect of the matters complained of herein.”

               In light of the relief sought under his declaratory claims, we must conclude that those

claims are redundant of the relief sought under the open meetings act.2 See Universal Printing Co.


       2
         On appeal, Riley argues that the district court erred by dismissing his declaratory claims
as redundant because many cases have allowed people to seek declaratory relief regarding the

                                                  6
v. Premier Victorian Homes, Inc., 73 S.W.3d 283, 296 (Tex. App.—Houston [1st Dist.] 2001, pet.

denied) (explaining that “[t]here is no basis for declaratory relief when a party is seeking in the same

action a different, enforceable remedy, and a judicial declaration would add nothing to what would

be implicit or express in a final judgment for the enforceable remedy”); cf. Strayhorn v. Raytheon

E-Sys., Inc., 101 S.W.3d 558, 572 (Tex. App.—Austin 2003, pet. denied) (stating that if statute

provides means for attacking final agency orders, declaratory-judgment action “will not lie to provide

a redundant remedy”). Accordingly, we overrule Riley’s second issue on appeal.


Riley was Not Required to Present his Claims Prior to Suit

                In his final issue on appeal, Riley contends that the district court erred by concluding

that he failed to properly present his claims to the Commissioners Court before filing suit. See Tex.

Loc. Gov’t Code Ann. § 89.004. When the Commissioners Court and the Commissioners filed their

plea, they argued that Riley’s mandamus claims were barred because he did not comply with section




open meetings act, see, e.g., Kessling v. Friendswood Indep. Sch. Dist., 302 S.W.3d 373, 387 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied), and that his declaratory relief is proper under the
declaratory judgment act because he is seeking construction of the statutory procedures required by
the open meetings act “in the context of actions taken by the Commissioners Court to determine
whether such actions are lawful.” In addition, Riley contends that although courts have dismissed
declaratory claims that were redundant and brought for the purpose of improperly obtaining attorney’s
fees, see Strayhorn v. Raytheon E-Sys., Inc., 101 S.W.3d 558, 572 (Tex. App.—Austin 2003, pet.
denied), his claims should not have been dismissed because he has not requested an award of
attorney’s fees under the declaratory judgments act. Given that Riley’s open-meetings claims and
his declaratory claims are nearly identical in nature and seek essentially the same relief, we are not
persuaded that the claims are not redundant of each other. Moreover, Riley has not referred us to
nor have we found any cases supporting the idea that redundant claims may be sought under the
declaratory judgments act provided that no claim for attorney’s fees is made.


                                                   7
89.004 of the local government code.3 That provision sets out the procedure for presenting claims

to a commissioners court and provides that, with one exception, “a person may not file suit on a

claim against a county or an elected or appointed county official in the official’s capacity . . . unless

the person has presented the claim to the commissioners court and the commissioners court neglects

or refuses to pay all or part of the claim before the 60th day after the date of the presentation of the

claim.” Id. § 89.004(a). Regarding the exception, the provision explains that a “person may file a

suit for injunctive relief against a county” and further relates that subsequent to the commissioners

court’s ruling on the request, “any portion of the suit that seeks monetary damages shall be abated

until the claim is presented to the commissioners court and the commissioners court neglects or

refuses to pay all or part of the claim by the 60th day after the date of the presentation of the claim.”

See id. § 89.004(c).

                In light of this provision, the Commissioners Court and the Commissioners insist

that the 60-day presentment requirement is a jurisdictional prerequisite to filing a suit that Riley

was obligated but failed to comply with. See Tex. Gov’t Code Ann. § 311.034 (West 2013)

(explaining that in suits against governmental entities, statutory prerequisites to suit, “including the

provision of notice, are jurisdictional requirements”). Accordingly, the Commissioners Court and

the Commissioners urge that the district court properly granted their plea and dismissed Riley’s




        3
          In their plea, the Commissioners Court and the Commissioners also asserted that Riley’s
declaratory-judgment action was barred for failing to comply with section 89.004. See Tex. Loc.
Gov’t Code Ann. § 89.004 (West 2008). Having determined that Riley’s requested declaratory
relief was redundant of his open-meetings claims, we need not address those claims in this issue.

                                                   8
open-meetings-mandamus claims, but they also admit that the failure to comply with the 60-day

provision does not bar Riley’s injunctive claims. See Tex. Loc. Gov’t Code Ann. § 89.004(c).4

               In resolving this dispute, we need not affirmatively decide whether presenting a claim

is a jurisdictional prerequisite to suit because we do not believe that the presentment provision

applies under these circumstances. The language of the provision demonstrates that the types of claims

governed by this provision are claims for monetary relief from a county. See id. § 89.004.5 That

proposition is supported by various court cases that have held that the purpose of the provision is to

advise a commissioners court about a claim and to provide the court an opportunity to investigate

the claim and adjust it without having to go through litigation. Lubbock Cnty. v. Trammel’s Lubbock

Bail Bonds, 80 S.W.3d 580, 584 (Tex. 2002); see also Bates v. Randall Cnty., 297 S.W.3d 828, 836

(Tex. App.—Amarillo 2009, pet. denied) (explaining that purpose of subsection 89.004(b) “is to

encourage the County to make legitimate efforts to settle claims without incurring significant



       4
           We note that there is a divide in the courts of appeal regarding whether the 60-day-
presentment requirement is a jurisdictional prerequisite to suit. Compare Forge v. Nueces Cnty.,
350 S.W.3d 740, 745 (Tex. App.—Corpus Christi 2011, no pet.) (concluding that provision is not
jurisdictional), with Dallas Cnty. v. C. Green Scaping, L.P., 301 S.W.3d 872, 879 (Tex. App.—Dallas
2009, no pet.) (determining that provision is jurisdictional prerequisite).
       5
          In their brief, the Commissioners Court and the Commissioners contend that Riley’s suit
is a claim for monetary damages because his petition sought costs as the district court deemed
appropriate and because the declaratory judgments act and the open meetings act each allow for the
recovery of attorney’s fees. See Tex. Gov’t Code Ann. § 551.142 (West 2012); Tex. Civ. Prac. & Rem.
Code Ann. § 37.009 (West 2008). However, we note that Riley has not filed a claim for attorney’s
fees. Moreover, although Riley may have requested costs incurred in pursuing his non-monetary
claims against the Commissioners Court, we are not persuaded that his request transforms his claims
against the Commissioners Court into requests for monetary relief within the meaning of section
89.004. See Tex. Loc. Gov’t Code Ann. § 89.004; cf. Bates v. Randall Cnty., 297 S.W.3d 828, 836
(Tex. App.—Amarillo 2009, pet. denied) (explaining that attorney’s fees are not considered as part
of recovery under section 89.004).

                                                  9
litigation expenses, while also providing a disincentive to claimants rejecting legitimate settlement

offers”). Our construction is also supported by case law interpreting the predecessor to section

89.004 as applying to claims for monetary damage. See Krier v. Navarro, 952 S.W.2d 25, 27 (Tex.

App.—San Antonio 1997, pet. denied) (explaining that provision applied to suits “in which the

plaintiff seeks payment of money from a county”). Moreover, Riley has not alleged claims for

monetary relief and is instead seeking non-monetary remedies for alleged open-meetings-act

violations and mandamus relief pertaining to those alleged violations.

               For these reasons, we must conclude that the district court erred when it dismissed

Riley’s mandamus claims for failure to comply with the presentment requirement of section 89.004.

Accordingly, we sustain this portion of Riley’s third issue on appeal.

               Having sustained portions of Riley’s first and third issues on appeal and overruled

his second issue, we reverse the portions of the district court’s order dismissing Riley’s open-

meetings claims against the Commissioners Court and dismissing his mandamus claims, and we

affirm the dismissal of Riley’s declaratory claims. Accordingly, we remand the case for proceedings

consistent with this opinion.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Rose, and Goodwin

Affirmed in part; Reversed and Remanded in part

Filed: May 23, 2013



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