                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00354-CV


TARRANT REGIONAL WATER                                              APPELLANT
DISTRICT

                                        V.

MONTY BENNETT                                                         APPELLEE


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        FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 153-264899-13

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                                   OPINION

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                                I. INTRODUCTION

      Appellee Monty Bennett sued Appellant Tarrant Regional Water District

(TRWD) for alleged violations of the Texas Open Meetings Act (TOMA). See

Tex. Gov’t Code Ann. §§ 551.001‒.146 (West 2012 & Supp. 2014). TRWD filed

a plea to the jurisdiction, arguing that its immunity from Bennett’s suit remained

intact because the Texas Water Code expressly excepts the conduct of which
Bennett complains from TOMA’s coverage. See Tex. Water Code Ann. § 49.064

(West 2008). The trial court disagreed with TRWD and denied its plea. We

disagree with the trial court and will reverse and render a judgment of dismissal.

                                 II. BACKGROUND

      Bennett is a resident of Dallas County and a principal of East Texas

Ranch, LP, an entity that owns and operates a “wildlife sanctuary” in Henderson

County.

      TRWD is a water control and improvement district created under the

authority of article XVI, section 59 of the Texas constitution and governed by

chapters 49 and 51 of the water code. See Tex. Const. art. XVI, § 59; Tex.

Water Code Ann. §§ 49.001‒.512 (West 2008 & Supp. 2014), §§ 51.001‒.875

(West 2002 & Supp. 2014). TRWD is administratively governed by a Board of

Directors (the Board). See Tex. Water Code Ann. § 51.071. One of TRWD’s

purposes is “the control, storage, preservation, and distribution of its water and

floodwater and the water of its rivers and streams for irrigation, power, and all

other useful purposes.” See id. § 51.121(b)(1).

      Bennett alleged in his original and amended petitions that TRWD and its

Board have continuously and systematically violated TOMA by conducting

TRWD’s “affairs in a manner that ensures [that] substantive discussion,

deliberation and informed decision-making about TRWD’s public business and

policy all occur away from the public view and outside of meetings open to the

public.” Specifically, Bennett acknowledged that TRWD’s Board conducts open

                                         2
meetings, but the meetings, he contended, are merely “designed to elevate form

over substance and maintain the illusion of compliance with” TOMA. He claims

that discussion, deliberation, and decision-making of TRWD business actually

occur before the Board’s meetings and outside of the public view by authorized

committees.    According to Bennett, the committees, which he believes are

governmental bodies subject to TOMA, function in more than just an advisory

role to the Board; they exercise supervision and control of TRWD’s public

business, making formal decisions on matters that are then presented to the

Board in the form of “recommendations.”       The Board then rubber-stamps—

ceremoniously, unanimously, and without any meaningful deliberation—the

committees’ decisions.

      As an example, Bennett referenced an agreement between TRWD and the

City of Dallas for the construction of a water pipeline from Lake Palestine to

Benbrook Lake. The project, a multi-billion dollar joint venture, apparently calls

for approximately 140 miles of pipeline, a number of connections, and the

construction and use of high voltage power lines and pump stations. Bennett

averred that the decision to contract with the City of Dallas was made by TRWD’s

Construction and Operations Committee, which Bennett has named the “Action

Committee,” and that TRWD’s Board predictably approved the decision with a

rubber-stamp vote.

      Bennett complains of three TRWD committees that he insists are

governmental bodies subject to TOMA: (1) the “Action Committee,” which

                                        3
supervises and controls TRWD’s public business; (2) the “Legal Action

Department,” which TRWD’s Board vested with authority to pursue judicial relief

in furtherance of the pipeline project; and (3) the “Pipeline Management

Committee,” which TRWD tasked with overseeing and implementing the pipeline

project.

      Bennett seeks declarations that TRWD, its Board, and its committees are

subject to TOMA; that each governmental body has violated TOMA; and that all

actions taken in violation of TOMA are void. He also seeks injunctive relief,

including a permanent injunction requiring TRWD to comply with TOMA and

prohibiting TRWD from “taking any action in furtherance of the Pipeline Project

until all TOMA violations have been remedied.”

      TRWD countered in its plea to the jurisdiction that Bennett’s “real

complaint” lies with the pipeline project “because a small section of the pipeline

could pass under a portion of [Bennett’s] rural property in Henderson County.”

According to TRWD,

             [Bennett] filed this litigation in coordination with his substantial
      financial support of three candidates challenging incumbent
      members of TRWD’s Board seeking reelection in May 2013. The
      three candidates frequently mentioned [Bennett’s] lawsuit in their
      campaign literature disseminated before the election. These efforts
      to secure a majority of the Board failed and [Bennett] is pursuing this
      meritless case as part of an apparent strategy to modify or to shut
      down the pipeline project.

      Regarding the three committees that Bennett claims are governmental

bodies subject to TOMA, TRWD clarified that the Construction & Operations


                                          4
Committee is a committee of the Board but that no more than two members of

the Board had been present at any of its meetings from January 2009 through

June 2013; that there is no “Legal Action Department”—the Board had simply

adopted a resolution, in connection with the Integrated Pipeline Project,

authorizing TRWD’s Real Property Director to enforce TRWD’s rights under

water code section 49.221, if necessary; and that there is no “Pipeline

Management Committee”—insofar as Bennett refers to engineers, contractors,

and staff members who meet to work on the Integrated Pipeline Project, the

meetings occur in the ordinary course of employment at TRWD and without the

attendance of any TRWD board members.

      TRWD argued that Bennett’s suit should be dismissed for lack of

jurisdiction because he relies upon TOMA to waive TRWD’s immunity from suit,

but TOMA does not apply to meetings of board committees when less than a

quorum is present—the very committee meetings of which Bennett complains.

TRWD additionally argued that its plea should be granted because Bennett failed

to join indispensable parties and because his claims are moot. The trial court

denied TRWD’s plea, and this interlocutory appeal followed.

                     III. TRWD’S GOVERNMENTAL IMMUNITY

      TRWD argues in its first issue that its immunity from Bennett’s suit has not

been waived because the committee meetings of which he complains are

unambiguously exempted from TOMA’s coverage by the water code. We agree.



                                        5
      A.     Standard of Review

      Governmental immunity from suit defeats a trial court’s subject-matter

jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep’t of

Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The plaintiff has the burden to

plead facts affirmatively showing that the trial court has jurisdiction. Tex. Ass’n of

Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). If a plea to the

jurisdiction challenges the existence of jurisdictional facts, we consider relevant

evidence submitted by the parties when necessary to resolve the jurisdictional

issues raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). If the

evidence creates a fact issue, then it is for the factfinder to decide.       Id.   In

considering this evidence, we take as true all evidence favorable to the

nonmovant and indulge every reasonable inference and resolve any doubts in

the nonmovant’s favor. Id. Whether the trial court has subject-matter jurisdiction

is a question of law that we review de novo. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation

Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

      Water control and improvement districts are “valid and existing

governmental agencies and bodies politic.” Kirby Lake Dev., Ltd. v. Clear Lake

Water Auth., 320 S.W.3d 829, 836 (Tex. 2010).                As such, they enjoy

governmental immunity from suit, unless immunity is expressly waived. Id.




                                          6
      B.      No TOMA Coverage, No Waiver of Immunity

      Bennett relies on TOMA to waive TRWD’s immunity from suit. TOMA’s

purpose is to enable public access to, and to increase public knowledge of,

government decision making. City of San Antonio v. Fourth Court of Appeals,

820 S.W.2d 762, 765 (Tex. 1991).       It “was promulgated to encourage good

government by ending, to the extent possible, closed-door sessions in which

deals are cut without public scrutiny.” Save Our Springs Alliance, Inc. v. Lowry,

934 S.W.2d 161, 162 (Tex. App.—Austin 1996, orig. proceeding). To that end,

with certain exceptions, TOMA requires that every regular, special, or called

meeting of a “governmental body” be open to the public. See Tex. Gov’t Code

Ann. § 551.002. Several courts have held that TOMA expressly waives immunity

for violations of the act and authorizes suits against governmental bodies. See

Riley v. Comm’rs Court of Blanco Cnty., 413 S.W.3d 774, 776 (Tex. App.—Austin

2013, pet. denied); Gillium v. Santa Fe ISD, No. 01-10-00351-CV, 2011 WL

1938476, at *7 (Tex. App.—Houston [1st Dist.] May 12, 2011, no pet.)

(mem. op.).

      TRWD does not dispute that TOMA waives governmental immunity or that

the meetings of its Board are subject to TOMA. Rather, directing us to water

code section 49.064, TRWD argues that TOMA’s waiver of immunity simply does

not apply here because its coverage does not extend to the Board’s committee

meetings in which less than a quorum of the Board is present, and Bennett’s suit

implicates only those types of committee meetings. Bennett responds that the

                                       7
legislature “did not create the illogical ‘exemption’ proposed by” TRWD. We

apply well-established rules of statutory construction to resolve the issue.

      Our primary objective when construing a statute is to ascertain and give

effect to the legislature’s intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex.

2006). We seek that intent first and foremost in the statutory text. Lexington Ins.

Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). We rely on the plain meaning

of the text, unless a different meaning is supplied by legislative definition or is

apparent from context, or unless such a construction leads to absurd results.

City of Rockwall v. Hughes, 246 S.W.3d 621, 625‒26 (Tex. 2008); see Tex. Gov’t

Code Ann. § 311.011(a) (West 2013). Further, in determining the meaning of a

statue, a court must consider the entire act, its nature and object, and the

consequences that would follow from each construction.          Sharp v. House of

Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991).        We presume that the entire

statute is intended to be effective and that the legislature enacted it with

complete knowledge of the existing law and with reference to it. Tex. Gov’t Code

Ann. § 311.021(2) (West 2013); Acker v. Tex. Water Comm’n, 790 S.W.2d 299,

301 (Tex. 1990). We do not lightly presume that the legislature may have done a

useless act. Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d

628, 637 (Tex. 2010).

      Water code chapter 49 provides a blueprint for creating and operating

general law water districts. Kirby Lake Dev., 320 S.W.3d at 835. Section 49.051

provides that a district “shall be governed by its board,” and section 49.053 states

                                         8
that “[a] majority of the membership of the board constitutes a quorum for any

meeting.” Tex. Water Code Ann. §§ 49.051, .053. Because a water control and

improvement district’s board “shall consist of five directors,” see id. § 51.071,

three members constitutes a quorum; anything less does not. Titled “Meetings,”

section 49.064 provides as follows:

            The board shall hold such regular and special meetings as
      may be necessary for the proper conduct of the district’s business.
      All meetings shall be conducted in accordance with the open
      meetings law, Chapter 551, Government Code. A meeting of a
      committee of the board, or a committee composed of
      representatives of more than one board, where less than a quorum
      of any one board is present is not subject to the provisions of the
      open meetings law, Chapter 551, Government Code.

Id. § 49.064 (emphasis added).

      The legislature could not have been more clear. While a board’s meetings

must be conducted in accordance with TOMA, meetings of the board’s

committees in which less than a quorum of the board is present are not subject to

TOMA’s open-meetings requirements. As applied to TRWD, which is subject to

chapter 49, section 49.064 requires the Board to conduct its meetings in

accordance with TOMA but does not require meetings of the Board’s committees

at which less than a quorum of the Board is present to comply with TOMA’s

requirements.

      This plain-meaning interpretation is consistent not only with other

provisions of chapter 49 but also with TOMA.        See Tex. Gov’t Code Ann.

§ 311.011(a) (providing that words and phrases shall be read in context); Sharp,


                                       9
815 S.W.2d at 249. Water code section 49.063 provides that notice of board

meetings “shall be given as set forth in the open meetings law”; the statute does

not afford a similar notice requirement to meetings of a board’s committee. And

although a “committee” is included in the definition of “governmental body,” as

Bennett points out, TOMA defines a “Meeting” as “a deliberation between a

quorum of a governmental body” or a deliberation “between a quorum of a

governmental body and another person, during which public business or public

policy over which the governmental body has supervision or control is discussed

or considered or during which the governmental body takes formal action.” Tex.

Gov’t Code Ann. § 551.001(3)(A), (4)(A) (emphasis added).             Thus, the

legislature’s decision in water code section 49.064 to except from TOMA’s

requirements meetings of a board’s committee in which less than a quorum of

the board is present comports with its decision in TOMA to define a “Meeting” as

constituting a deliberation involving, at minimum, a quorum of a “governmental

body.” Our presumption that the legislature enacted the later-in-time water code

provision with complete knowledge of the earlier-enacted TOMA is therefore

particularly relevant here. Compare Act of May 25, 1995, 74th Leg., R.S., ch.

715, § 2, 1995 Tex. Gen. Laws 3755, 3760, with Act of May 4, 1993, 73rd Leg.,

R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 586.

      Bennett argues that interpreting water code section 49.064 as TRWD

suggests would lead to an absurd result—concluding on one hand that the

legislature requires that water districts be governed by boards that must manage

                                       10
district affairs and conduct meetings in the open but concluding on the other

hand that the legislature, in the same statute, “enacted an exception that nullified

that mandate by permitting water districts to intentionally act privately and non-

publicly through committees.”1 Interpreted according to its plain language and in

context, section 49.064 does not permit water districts to “intentionally act

privately and non-publicly through committees” or to “operate and conduct a

district’s affairs privately.” Bennett’s charges are merely a reflection of his own

allegations in this lawsuit, not the unambiguous language of the statute. Our

proper construction of the water code does not somehow conclusively establish

Bennett’s allegations for him.2

      In arguing that water code section 49.064 should not be interpreted to

exclude from TOMA’s coverage meetings of the Board’s committees in which

less than a quorum of the Board is present, Bennett directs us to a handful of

attorney general opinions, the gist of which reason that TOMA’s requirements

“may” apply to meetings of less than a quorum of a governmental body even

though TOMA expressly defines a “Meeting” as a deliberation involving a quorum

      1
      In a related argument, Bennett contends that water code section 49.064
does not “say that a water district’s board ‘may act through committees’ as
[TRWD] has asserted. Nor does it say a district may do so to exempt itself from
TOMA’s requirements, and operate and conduct a district’s affairs privately.”
      2
       TRWD also makes a good point: Its “use of committee action in
researching, planning and implementing the Integrated Pipeline Project is the
antithesis of absurdity. Indeed, it would be illogical to think that the complex
engineering studies, project specifications, logistical analyses, and contract
development could be efficiently and effectively accomplished at the board level.”

                                        11
of a governmental body. See Tex. Att’y Gen. Op. No. JC-0060 (1999); Tex. Att’y

Gen. Op. No. JC-0053 (1999); Tex. Att’y Gen. LO-97-058 (1997); Tex. Att’y Gen.

LO-97-017 (1997); Tex. Att’y Gen. LO-76-H-823 (1976); Tex. Att’y Gen. LO-74-

H-438 (1974).     Citing only themselves as authority, the opinions’ reasoning

appears to hinge on a distinction between a committee that possesses purely

advisory duties and a committee that has the power to supervise or control public

business or policy. See Tex. Att’y Gen. Op. No. JC-0053; Tex. Att’y Gen. LO-97-

017. Bennett runs with the analysis in his pleadings and on appeal, contending

that TRWD “operates through committees that were more than advisory

committees, which had responsibility and authority to supervise and control, and

did supervise and control, important public business and policy for the district.”

      Under the circumstances, we are not persuaded by any of the inapposite

attorney general opinions. See Holmes v. Morales, 924 S.W.2d 920, 924 (Tex.

1996) (stating that attorney general opinions are not controlling on the courts).

None of the opinions involve either water code section 49.064 or another statute

like section 49.064 that expressly disclaims TOMA’s coverage.             Moreover,

several of the opinions purport to conclude that a committee appointed by a

governmental body but containing less than a quorum of its members may be

subject to TOMA because the committee “falls within a definition of the term

‘governmental body.’” Tex. Atty. Gen. Op. No. JC-0060. But such a construction

effectively renders meaningless part of another of TOMA’s equally important

definitions:   “Meeting,” which requires a quorum of a governmental body.

                                         12
Ultimately, the construction advocated by the opinions fails to abide by the

supreme court’s demand that there be “exact and literal compliance with the

terms of” TOMA. See Acker, 790 S.W.2d at 300.

      Citing the need to liberally construe TOMA’s provisions to safeguard the

public’s interest, the San Antonio court of appeals once employed reasoning

similar to the attorney general’s opinions. See Willmann v. City of San Antonio,

123 S.W.3d 469, 478 (Tex. App.—San Antonio 2003, pet. denied). However,

liberally construing TOMA does not mean shelving well-established rules of

statutory construction to achieve a particular result that is patently inconsistent

with the literal terms of the statute.

      Turning to TRWD’s jurisdictional evidence, it included the affidavits of Alan

Thomas, TRWD’s Assistant General Manager, and Nancy King, TRWD’s

Records Manager. Thomas confirmed that “[a]t no time during the past four

years has a meeting of the Construction & Operations Committee been attended

by more than two members of the Board,” i.e., three members being a quorum of

the Board. King attached to her affidavit reports from January 2009 through June

2013 confirming Thomas’s statement. Bennett did not controvert this evidence,

nor are his arguments challenging the evidence persuasive.

      Bennett complains about the “Pipeline Management Committee,” but

according to Thomas, there is no such committee. To the extent that Bennett

refers to TRWD engineers, contractors, and staff members who meet to work on

the Integrated Pipeline Project, Thomas affirmed that the meetings occur in the

                                         13
ordinary course of employment at TRWD and without the attendance of any

TRWD board members. Because TOMA addresses violations by members of a

governmental body, see Tex. Gov’t Code Ann. § 551.142(a), Bennett’s

allegations against TRWD staff do not allege a violation of TOMA—and therefore

a waiver of governmental immunity—independent of his allegations against the

Construction & Operations Committee, what Bennett calls the “Action

Committee.”3 See id. § 554.001 (not including staff in definition of “Governmental

body”).

      In sum, Bennett complains that TRWD’s Board violated TOMA by privately

conducting its affairs through authorized committees that exercise supervision

and control of public business, but water code section 49.064 unambiguously

excludes from TOMA’s coverage meetings of the Board’s committees at which

less than a quorum is present, and TRWD’s jurisdictional evidence conclusively

established that less than a quorum of TRWD’s Board had attended any of the

claimed committee meetings of which Bennett complains.            TOMA and its

accompanying waiver of immunity therefore do not apply, and the trial court erred

by denying TRWD’s plea to the jurisdiction. We sustain TRWD’s first issue and

do not reach its second and third issues. See Tex. R. App. P. 47.1.




      3
      Bennett’s allegations against what he calls TRWD’s “Legal Action
Department” suffer similarly.

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                                 IV. CONCLUSION

      Having sustained TRWD’s first issue, we reverse the trial court’s order

denying TRWD’s plea to the jurisdiction and render judgment dismissing

Bennett’s claims against TRWD for lack of jurisdiction.



                                                  /s/ Bill Meier

                                                  BILL MEIER
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DAUPHINOT, J., filed a dissenting opinion.

DELIVERED: November 26, 2014




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