                            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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                   DISSENTING MEMORANDUM OPINION1

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       I respectfully dissent from the majority’s opinion and judgment.

       Section 49.051 of the water code states that “[a] district shall be governed

by its board.”2 Section 49.064 states that the board of a water improvement

district


       1
           See Tex. R. App. P. 47.4.
      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.3

Under the second half of this section, a water district’s board may have

committees, and those committees’ meetings are not subject to the provisions of

government code chapter 551,4 the Open Meetings Act (TOMA).

      In the first part of that section, however, the legislature requires the board

to hold meetings for conducting the district’s business and to hold those meetings

in compliance with TOMA. The fair and reasonable reading of this section as a

whole is that it allows TRWD committees to have meetings that do not comply

with TOMA requirements, but not if they are essentially conducting the district’s

business. That is, the district’s business is to be conducted by the board in

compliance with TOMA.

      TRWD committees are allowed to meet without complying with TOMA, and

those committees can work on projects assigned to them by the board. But there

is a line that TRWD committees must not cross.           If the district’s essential

      2
       Tex. Water Code Ann. § 49.051 (West 2008).
      3
         Id. § 49.064 (West 2008); see id. §§ 49.001 (West 2008) (defining
“district” and “board”), 49.002 (West 2008) (stating that chapter 49 applies to all
general and special law districts).
      4
       See Tex. Gov’t Code Ann. §§ 551.001–.146 (West 2012 & Supp. 2014).

                                         2
business is being conducted by committees that are not following TOMA, and if

the board is then doing nothing more than rubber-stamping every action

recommended or taken by the committees, then TOMA is being violated. To hold

otherwise is to allow TRWD to circumvent TOMA and to thwart the statute’s very

purpose.

      The majority states that section 49.064 does not permit water districts to

conduct their affairs in private.5 But under the majority’s opinion, that is exactly

what that section does allow. By allowing TRWD to have meaningful decisions

take place in the committee meetings instead of in open board meetings, the

majority approves of TRWD’s using what is in essence a walking quorum. In my

opinion, Bennett raised a fact issue about whether TRWD conducts its business

in violation of the water code and TOMA. I therefore dissent.



                                                   /s/ Lee Ann Dauphinot

                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

DELIVERED: November 26, 2014




      5
       Majority Op. at 11.

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