Opinion filed August 9, 2012




                                           In The


   Eleventh Court of Appeals
                                         __________

                                   No. 11-11-00156-CR
                                       __________

                               JOE R. COOKSEY, Appellant

                                              V.

                               STATE OF TEXAS, Appellee


                          On Appeal from the County Court at Law

                                    Brown County, Texas

                                Trial Court Cause No. 1000879


                                        OPINION

       The jury convicted Joe R. Cooksey of knowingly disclosing to a member of the public a
certified agenda or tape recording of a meeting that was lawfully closed to the public under the
Texas Open Meetings Act (TOMA), TEX. GOV’T CODE ANN. ch. 551 (West 2012).                   See
Section 551.146. The trial court assessed punishment at 180 days in the Brown County Jail and
a fine of $500.    Imposition of the sentence was suspended, and Cooksey was placed on
community supervision for a term of one year. We reverse and acquit.
       Cooksey filed a petition in district court to remove the Brown County Judge from office.
He alleged that the judge had, among other things, held an unlawfully closed meeting of the
Brown County Commissioners Court to discuss a pending criminal investigation against the
county tax assessor and to discuss recent actions taken by the tax assessor in her county office,
such as shredding and removing files. Cooksey attached to his petition a compact disc that
contained a copy of the tape recording from the meeting at issue in this case; he also attached a
typed transcript of the recording. The district court refused to issue citation, and it dismissed the
petition. Later, Cooksey was charged by information with the Class B misdemeanor offense of
disclosing a certified agenda or tape recording of a closed meeting under Section 551.146 of the
Texas Government Code. See Section 551.146(a)(1), (b). The first information was quashed,
and the second was dismissed on the State’s motion. The State proceeded to trial on the third
information
       After the State rested its case-in-chief, Cooksey moved for an instructed verdict of not
guilty based on the grounds that the State failed to prove that the meeting was lawfully closed
and that there was no evidence that Cooksey disclosed the tape recording to a specific member of
the public. The trial court denied the motion, and the jury found Cooksey guilty as alleged in the
information. Cooksey filed a motion for new trial in which he alleged the same deficiencies.
The motion was overruled by operation of law. The trial court certified Cooksey’s right to
appeal, and Cooksey timely filed his notice of appeal.
       The issues in this case are a matter of first impression in Texas. We have not found a
case in which an appellate court has construed or applied Section 551.146, nor has either party
directed us to such a case. However, because we find that the evidence was insufficient to
support a conviction against Cooksey under Section 551.146, we will not reach several of the
issues that Cooksey presents.
       In this appeal, Cooksey brings four issues for our review. In his first issue, Cooksey
asserts that Section 551.146 is unconstitutional on its face because it attempts to regulate free
speech by members of the public regarding matters of public concern and that the statute is
unconstitutionally vague as applied because it does not give fair notice of the conduct that it
prohibits. Cooksey argues in his second issue that the evidence was legally insufficient to
support his conviction. He also contends, in his third issue, that the trial court abused its
discretion when it denied his motion to suppress.        Specifically, he asserts that the special

                                                 2
prosecutor obtained the original tape recording of the closed meeting without lawful authority
and in violation of Section 551.104. In his final issue, Cooksey claims that the Brown County
Court at Law did not have jurisdiction to hear his case and asserts that the Texas Legislature
gave sole jurisdiction to district courts for violations involving TOMA.
       We will first address whether the Brown County Court at Law had jurisdiction in this
case. Section 551.146 provides that an individual commits a Class B misdemeanor if the
individual “without lawful authority knowingly discloses to a member of the public the certified
agenda or tape recording of a meeting that was lawfully closed to the public.”
Section 551.146(a)(1), (b). The Texas Penal Code provides that an individual convicted of a
Class B misdemeanor shall be punished by a fine not to exceed $2,000, confinement in jail for a
term of not more than 180 days, or both a fine and confinement. TEX. PENAL CODE ANN. § 12.22
(West 2011). The Texas Code of Criminal Procedure provides that “county courts shall have
original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to
the justice court, and when the fine to be imposed shall exceed five hundred dollars.” TEX. CODE
CRIM. PROC. ANN. art. 4.07 (West 2005). Justice courts do not have jurisdiction over criminal
violations that impose confinement, such as Class B misdemeanors. See TEX. CODE CRIM. PROC.
ANN. art. 4.11 (West Supp. 2012). The $2,000 maximum fine that the trial court could impose
exceeds $500 and, thus, a county court has jurisdiction over this misdemeanor offense. The
Brown County Court at Law is the sole statutory county court in Brown County and “has
jurisdiction over all causes and proceedings, civil and criminal, original and appellate, prescribed
by law for county courts.” TEX. GOV’T CODE ANN. § 25.0003(a) (West Supp. 2012); see also
TEX. GOV’T CODE ANN. § 25.0271 (West 2004), § 25.0272(a) (West Supp. 2012). Thus, the
Brown County Court at Law has jurisdiction over Class B misdemeanors, including violations of
Section 551.146.
       Cooksey argues, however, that the legislature gave sole jurisdiction over violations of
TOMA to district courts. While it is true that district courts have jurisdiction over misdemeanors
involving official misconduct, this case is not one of official misconduct. See TEX. CODE CRIM.
PROC. ANN. art. 4.05 (West 2005). Therefore, we hold that the Brown County Court at Law had
jurisdiction in this case. We overrule Cooksey’s fourth issue.
       Because it is not absolutely necessary to a resolution of this appeal, we need not decide
whether Section 551.146 is constitutional. See Ex parte Salfen, 618 S.W.2d 766, 770 (Tex.

                                                 3
Crim. App. 1981) (“[T]he constitutionality of a statute will not be determined in any case unless
such a determination is absolutely necessary to decide the case in which the issue is raised.”).
We will instead next consider Cooksey’s insufficiency issues.
       We review the sufficiency of the evidence under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d).
Under the Jackson standard, we examine all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and any reasonable inferences from it, any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
Evidence is insufficient under this standard in four circumstances: (1) the record contains no
evidence probative of an element of the offense; (2) the record contains a mere “modicum” of
evidence probative of an element of the offense; (3) the evidence conclusively establishes a
reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged.
Brown v. State, No. 11-10-00154-CR, 2012 WL 2550472, at *5 (Tex. App.—Eastland June 28,
2012, no pet. h.) (citing Jackson, 443 U.S. at 314, 318 n.11, 320). If we find that the evidence is
insufficient under this standard, we must reverse the judgment and enter an acquittal. See
Tibbs v. Florida, 457 U.S. 31, 40–41 (1982).
       Section 551.146(a)(1) of the Texas Government Code provides that an individual
commits an offense under TOMA if, without lawful authority, he “knowingly discloses to a
member of the public the certified agenda or tape recording of a meeting that was lawfully closed
to the public.” Thus, in order to prove a violation under Section 551.146, the State had to prove
beyond a reasonable doubt that: (1) there was a lawfully closed meeting; (2) Cooksey knowingly
disclosed the agenda or tape recording of the lawfully closed meeting to a member of the public;
and (3) the disclosure was made without lawful authority. Cooksey argues that the State failed to
prove that the commissioners court gave proper notice for an emergency meeting or proper
notice for a meeting closed to the public and, thus, that the meeting was not lawfully closed. He
also asserts that the State failed to prove that he disclosed anything to a specific member of the
public because the State did not show that any member of the public actually read the transcript
or listened to the copy of the tape recording attached to his petition.



                                                  4
       TOMA requires that governmental bodies hold meetings that are open to the public—
unless one of the enumerated exceptions to the open meetings requirement authorizes a
discussion in a closed session. See Sections 551.002, 551.071–.089. A county commissioners
court is a governmental body subject to TOMA. Id. § 551.001(3)(B). Regardless of whether the
meeting is open or closed to the public, the governmental body is required to give the public
seventy-two hours’ notice of the meeting. See id. §§ 551.041, 551.043(a). If there is an
emergency or urgent public necessity, the governmental body may hold the meeting with two
hours’ notice to the public. Id. § 551.045(a). The governmental body must clearly identify the
emergency or urgent public necessity in the notice. Id. § 551.045(c). “An emergency or urgent
public necessity exists only if immediate action is required of a governmental body because of:
(1) an imminent threat to public health and safety; or (2) a reasonably unforeseeable situation.”
Id. § 551.045(b).
       The evidence showed that the county judge posted notice to the public on a Thursday for
a regular and open meeting scheduled in the commissioners court for the following Monday.
After the court posted the initial notice, it was brought to the county judge’s attention that the
county tax assessor had been indicted and had returned to her office to remove files, shred
papers, and change the password on the county computers. The county judge wanted to meet
with the commissioners in an emergency closed session to discuss what action the
commissioners court or the county attorney could take to resolve the situation in the tax
assessor’s office. The testimony shows that he believed there was an immediate threat to the
ability of the tax assessor’s office to conduct business and that there was potentially a threat to
the public’s safety. On Friday afternoon, he posted a subsequent notice “that a[n] emergency
meeting of the BROWN COUNY COMMISSIONERS COURT [would] convene on [Monday]
at 9:30 A.M. in the Commissioners Courtroom, Brownwood, Texas.”                The notice further
provided that the court would “convene into executive session pursuant to the provision of the
open meetings law, Chapter 551, Government Code, V.T.C.A. in accordance with the
requirements and authority set out in Section 551.071 and Section 551.074 to discuss personnel
matters and pending litigation.”
       The State was required to prove that the meeting was a lawful one. Thus, the State had to
prove that the commissioners court gave proper notice to the public under the seventy-two hour
notice requirement or under the two hour emergency exception. The evidence showed that the

                                                5
commissioners posted the notice on Friday at 1:13 p.m. and held the closed meeting on Monday
at 9:30 a.m. Thus, the evidence showed that they gave a little over sixty-eight hours’ notice, but
failed to give the required seventy-two. Although the initial notice gave seventy-two hours’
notice of the originally scheduled open meeting, it did not contain an item on the agenda
regarding the tax assessor or in any way give notice that the commissioners were going to
discuss pending litigation or personnel matters. Therefore, the State failed to prove that the
commissioners court gave seventy-two hours’ notice of the closed meeting.
       We next turn to whether the State proved that the commissioners court gave proper notice
under the two hour emergency exception. In order to meet this burden, the State was required to
prove that the commissioners clearly identified the emergency in the posted notice.             The
evidence presented by the State in this case shows that the emergency notice stated that there was
an emergency, but it provided no explanation of what that emergency or urgent public necessity
might be. The notice also stated that the commissioners would convene in executive session to
discuss personnel matters and pending litigation. Discussing personnel matters and conferring
with counsel about pending litigation are two of the exceptions to the general requirement that
meetings be open; however, citing to the exceptions, without more, does not clearly identify an
emergency. See Piazza v. City of Granger, 909 S.W.2d 529, 533 (Tex. App.—Austin 1995, no
writ) (holding that the city did not clearly identify the emergency when its reason for the
emergency was “lack of confidence” in a police officer and when the notice did not give any
further explanation as to why “lack of confidence” in an officer would give rise to an
emergency). We hold that this record contains no evidence probative of the “lawfully closed
meeting” element of the offense and that a rational trier of fact could not have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi, 330
S.W.3d at 638. Therefore, in this case, the evidence was insufficient to support a conviction
under Section 551.146. See Jackson, 443 U.S. at 314. We do not hold that the meeting was, as a
matter of law, an unlawful meeting, but hold only that the State failed to meet its burden to prove
that it was a lawful meeting as alleged in Cooksey’s second issue. That issue is sustained insofar
as the lawful meeting element of the offense is concerned.
       In view of our holding, we need not address the remainder of Cooksey’s second issue,
nor do we need to address the first and third issues. See TEX. R. APP. P. 47.1.



                                                 6
       We reverse the judgment of the trial court and render a judgment of acquittal.




                                                           JIM R. WRIGHT
                                                           CHIEF JUSTICE


August 9, 2012
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




                                               7
