                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-17-00189-CV


    REBECCA TERRELL AND CHANDRASHEKHAR THANEDAR, APPELLANTS

                                           V.

               PAMPA INDEPENDENT SCHOOL DISTRICT, APPELLEE

                         On Appeal from the 223rd District Court
                                   Gray County, Texas
               Trial Court No. 35621, Honorable James M. Mosley, Presiding

                                    January 9, 2019

                                       OPINION
                    Before CAMPBELL and PIRTLE and PARKER, JJ.


      Appellants, Rebecca Terrell and Chandrashekhar Thanedar, appeal the trial

court’s March 13, 2017 Judgment that appellants take nothing by their claims. Appellants

alleged that appellee, Pampa Independent School District (PISD), committed violations

of the Texas Open Meetings Act (TOMA) at twenty-two meetings occurring between

August 13, 2008, and May 29, 2009. Appellants seek a declaration that all actions taken

at these twenty-two meetings are void, “mandamus” relief to reinstate Terrell as a teacher

with an award of back pay, a permanent injunction against PISD committing future
violations of TOMA, and a declaration that appellants substantially prevailed and are

entitled to costs of litigation, attorney’s fees, and special damages.     We affirm the

judgment of the trial court.


                           Factual and Procedural Background


       PISD hired Terrell as a teacher for the 2008-2009 school year on a probationary

basis. At a meeting of the school board held on March 26, 2009, the board voted to

terminate Terrell’s probationary contract.       Both Terrell and Thanedar attended this

meeting and Terrell spoke out against the termination of her contract.


       On May 29, 2009, appellants filed suit alleging eight violations of TOMA which

allegedly affected each of twenty-two meetings held from August of 2008 through May of

2009. Because of these alleged violations, appellants sought to void all actions taken by

PISD at these twenty-two meetings, including the termination of Terrell’s probationary

contract.


       Physical notice for each of the twenty-two challenged meetings was posted to the

inside of an external glass door of the administrative building for PISD in a manner in

which the public could view them at any hour. These physical notices identified the date,

time, and place of each respective meeting. Meeting notices were also posted to PISD’s

website. However, due to an issue arising from a transfer to a new website for PISD,

notice of meetings were not posted on PISD’s website from January to May of 2009.

PISD was unaware of this issue until Thanedar brought it to the attention of Karen Linder,

the secretary for PISD’s superintendent. Upon learning that notices were not being




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posted to the website, PISD immediately took actions to correct the issue, which were

successful.


       By their appeal, appellants present thirteen issues. Most of these issues allege

specific violations of TOMA.      We will address these allegations of specific TOMA

violations and then will address any remaining relevant issues.


                                    Standard of Review


       When a trial court has issued findings of fact, challenges on the evidence should

be directed to the specific finding rather than to the judgment as a whole. Zagorski v.

Zagorski, 116 S.W.3d 309, 319 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op.

on reh’g). An unchallenged finding of fact is binding on appeal. Wade v. Anderson, 602

S.W.2d 347, 349 (Tex. App.—Beaumont 1980, writ ref’d n.r.e.). Findings of fact have the

same force and dignity as a jury’s verdict. Anderson v. City of Seven Points, 806 S.W.2d

791, 794 (Tex. 1991). When reviewing the legal sufficiency of the evidence, we consider

all the evidence in the light most favorable to the challenged finding while disregarding all

evidence and inferences to the contrary. City of Keller v. Wilson, 168 S.W.3d 802, 827

(Tex. 2005). We also must remain mindful that it is for the factfinder to assess the

credibility of the witnesses’ testimony, assign the weight to be afforded that testimony,

and to resolve inconsistencies within or conflicts amongst the testimony. Id. at 819-20.


       A trial court’s conclusions of law are reviewable only when attacked as erroneous

as a matter of law and not when attacked for lack of sufficient evidence to support them.

Burtch v. Burtch, 972 S.W.2d 882, 888 (Tex. App.—Austin 1998, no pet.). Conclusions

of law should be upheld on appeal if the judgment can be sustained on any theory of law


                                             3
supported by the evidence. Tex. Dep’t of Pub. Safety v. Stockton, 53 S.W.3d 421, 423

(Tex. App.—San Antonio 2001, pet. denied).


                                     Law and Analysis


       TOMA was enacted to assure that the public has the opportunity to be informed

concerning the transaction of public business. Acker v. Tex. Water Comm’n, 790 S.W.2d

299, 300 (Tex. 1990). To effectuate this policy, TOMA requires every regular, special, or

called meeting or session of every governmental body to be open to the public. Id. While

these purposes must be met, the Texas Supreme Court has indicated that substantial

compliance with TOMA’s notice requirements is sufficient. Cox Enters., Inc. v. Bd. of

Trustees of the Austin Indep. School Dist., 706 S.W.2d 956, 958 (Tex. 1986) (citing Tex.

Turnpike Auth. v. City of Fort Worth, 554 S.W.2d 675, 676 (Tex. 1977), and Lower Colo.

River Auth. v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975)); City of Laredo v.

Escamilla, 219 S.W.3d 14, 19 (Tex. App.—San Antonio 2006, pet. denied). Nonetheless,

governmental actions taken in violation of TOMA are voidable. TEX. GOV’T CODE ANN.

§ 551.141 (West 2017); Argyle Indep. School Dist. v. Wolf, 234 S.W.3d 229, 247 (Tex.

App.—Fort Worth 2007, no pet.).


       To determine whether a governmental entity substantially complied with the

requirements of TOMA, we look to whether the notice fairly identifies the meeting and “is

sufficiently descriptive to alert a reader that a particular subject will be addressed.” Burks

v. Yarbrough, 157 S.W.3d 876, 883 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Our

primary focus should be on whether the purposes of the statute were met by the

governmental agency. See City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d



                                              4
762, 768 (Tex. 1991) (orig. proceeding) (posting sufficient because it fulfilled TOMA’s

purposes); City of Laredo, 219 S.W.3d at 19 (“Courts must be careful to ensure that the

notice serves the core purpose of the Act” but “[i]f a ‘reader’ is given notice, the

requirements of TOMA are satisfied and its purpose served.”). Ultimately, we are not

tasked with determining whether the governmental entity could have posted a better

notice in a better manner; rather we are tasked with determining whether the notice was

sufficient to notify the public of the meeting and its topics. See City of San Antonio, 820

S.W.2d at 768; City of Laredo, 219 S.W.3d at 19.


                                         Analysis


       The Open Meetings Act generally requires that written notice of the date, time,

place, and subject of each meeting held by a governmental body be posted in a place

readily accessible to the general public at least seventy-two hours before the scheduled

time of the meeting. See TEX. GOV’T CODE ANN. §§ 551.041, .043 (West 2017); Wolf, 234

S.W.3d at 247. “A school district shall post notice of each meeting on a bulletin board at

a place convenient to the public in the central administrative office of the district.” TEX.

GOV’T CODE ANN. § 551.051 (West 2017). Further, a school district that maintains an

internet website must concurrently post notice of each meeting on its website.           Id.

§ 551.056(b)(3) (West 2017); Wolf, 234 S.W.3d at 247-48. However, a school district’s

failed good faith attempt to post a notice to its internet website is excused if the failure

was due to a technical problem beyond the control of the school district. TEX. GOV’T CODE

ANN. § 551.056(d).




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       Meetings may be closed if the subject of the meeting is to “deliberate the

appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a

public officer or employee” or “hear a complaint or charge against an officer or employee.”

Id. § 551.074(a) (West 2017). However, the person who is the subject of the deliberation

or hearing may request that the meeting be a public meeting. Id. § 551.074(b). When a

meeting will be closed, the governmental body must first convene in a properly noticed

open meeting during which the presiding officer announces that a closed meeting will be

held while identifying the sections under which the closed meeting is being held. Id.

§ 551.101 (West 2017).


       Appellants contend that the written notice that was posted at the PISD

Administrative Building did not comply with TOMA because it did not sufficiently identify

the place of the meetings. Appellants argue that PISD violated TOMA by including only

a partial description of the place of the meetings, such as “Pampa High School,” without

identifying the meeting room, full street address, or name of the city. TOMA requires that

the notice identify the “place” of the meeting. See id. § 551.041. While it would be more

helpful if the notices in this case had identified the specific room in which the meetings

were to be held, we deem these descriptions sufficiently specific to alert the public of the

location of the school board meetings. See Cox Enters., Inc., 706 S.W.2d at 959 (general

notice is substantial compliance even though the notice is not as specific as it could be);

Lipscomb Indep. School Dist. v. Cty. School Trustees of Lipscomb Cty., 498 S.W.2d 364,

366 (Tex. App.—Amarillo 1973, writ ref’d n.r.e.) (substantial compliance with notice

requirements sufficient). In addition, appellants did not establish that the lack of specificity

regarding the place of the meetings prevented them or anyone else from attending any


                                               6
of the challenged meetings. See id. at 366-367 (“There is no evidence that anyone who

desired to attend the meeting failed to attend, nor is there any evidence that anyone who

desired to attend was denied admittance.”). Thanedar indicated that he was late in

arriving to one meeting because the notice did not specifically identify the room in which

the meeting was held. However, he further testified that he chose to leave without

attempting to attend the meeting. As such, there was no evidence that the identification

of the place of the meetings was so deficient that the notices failed to notify the general

public of the place of the meetings.


       Appellants also contend that PISD failed to post written notice for the March 26,

2009 school board meeting for at least seventy-two hours before the meeting. See TEX.

GOV’T CODE ANN. § 551.043. Appellants appear to argue both that there is no evidence

to support that the notice of the March 26, 2009 meeting was timely posted or that it

identified that Terrell’s probationary contract would be a subject at the meeting. See id.

§ 551.041. Karen Linder, secretary for PISD’s superintendent, testified that she always

posts notices of school board meetings at least seventy-two hours before the meetings

and has done so throughout her career. This is clearly some evidence that supports the

trial court’s finding of fact that the notice was posted at the PISD administrative building

more than seventy-two hours before the meeting. See City of Keller, 168 S.W.3d at 827.

In addition, the notice itself indicates that it was posted by 5:00 p.m. on March 23, 2009.

While Thanedar testified that he did not see the notice of the March 26, 2009 meeting

posted at the PISD administrative building at 5:00 or 6:00 p.m. on March 23, 2009, we

must disregard this evidence when applying the proper standard of review to appellants’

contention. See id. at 811 (evidence can be disregarded whenever reasonable jurors


                                             7
could do so, which is necessarily fact-specific). Further, the notice of the March 26, 2009

meeting clearly identifies that “[a]pproval and renewal of probationary contract

employees” and “[a]pproval of termination of probationary contract employees” are

subjects that were to be addressed at this meeting. Consequently, we conclude that there

was evidence in the record that supports the trial court’s determination that the notice of

the March 26, 2009 meeting was posted at least seventy-two hours before the meeting

and that it identified that Terrell’s probationary contract would be addressed at the

meeting.


       Appellants also contend that Karen Linder was not authorized to sign and post

meeting notices in her own name and in her individual capacity. Appellants contend that

Linder’s signing the notices violates TOMA because she is not “designated or authorized

to post notice of a meeting . . . .” TEX. GOV’T CODE ANN. § 551.045(d) (West 2017).

However, section 551.045 applies only to emergency meetings and appellants offered no

evidence that any of the challenged meetings were called as emergency meetings. In

addition, Linder testified that she is not only authorized but required by her job description

to post notices. Appellants offered evidence that the board secretary is required to ensure

that notices are properly posted.      This evidence does not prove that Linder is not

authorized to sign and post notices.


       Appellants also contend that PISD did not post notices on a bulletin board in the

central administrative office in the district. Appellants’ contention is not that PISD did not

post notices at the central administrative office but, rather, that the notices were not

posted on a bulletin board that is housed within the administrative office. See TEX. GOV’T

CODE ANN. § 551.051. PISD acknowledged that there is a bulletin board maintained within

                                              8
the central administrative office but that, rather than posting notices of meetings there, it

posted notices of meetings to the inside of a glass door at the central administrative office

such that the notices could be read at any time. The trial court concluded that the postings

on the front door constituted postings on a bulletin board that complied with TOMA. While

it seems the more compliant approach would have been to simply post one copy of the

notice to the front door and another to the bulletin board contained within the central

administrative office, we conclude that PISD’s postings of meeting notices to the front

door of the central administrative office substantially complied with the requirements of

TOMA.1


        Next, appellants contend that PISD violated TOMA by failing to timely post notices

of board meetings to its internet website. See TEX. GOV’T CODE ANN. §§ 551.043(b), .056.

PISD concedes that it did not concurrently post meeting notices to its website for the

period of January 15, 2009, through May 19, 2009, due to an oversight arising out of PISD

hiring a third-party vendor to create and maintain a new website for the school district.

Evidence that PISD timely and properly posted notices to the website for the period prior

to January 15, 2009, was provided by Karen Linder. She testified as to the process she

employed to post notices to the website and testified that she employed this process as

to each of the twenty-two notices that are being challenged by appellants. This evidence

is sufficient to support the trial court’s finding that PISD timely posted notices to its website

for the period of August 13, 2008, through January 15, 2009.




        1  In addition, “[t]here is no evidence that anyone who desired to attend the meeting failed to attend,
nor is there any evidence that anyone who desired to attend was denied admittance.” See Lipscomb Indep.
School Dist., 498 S.W.2d at 366-367.

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      When PISD hired SchoolCenter, a third-party vendor, to create a new website for

the district, SchoolCenter failed to recreate a hyperlink on the website where the notices

that Linder created using the Boardbook software were to be published. Since she

continued to use the same process to create and post notices that she had used

previously, Linder did not believe that she needed to check the new website to verify that

the meeting notices were accessible through the PISD website. Unfortunately, because

of the omission of the hyperlink, Linder’s notices were not posted to the PISD website

throughout the period from January 15, 2009, until May 19, 2009, when Thanedar notified

Linder that the notices were not appearing on the website. The trial court found this to

constitute a good faith attempt to comply with the internet posting requirements that

excused PISD’s failure to post notices to its website for the period of time between mid-

January and mid-May of 2009. See id. § 551.056(d). Appellants contend that PISD did

not meet the good faith exception because it did not establish that its failure to post

meeting notices to the website was either a technical problem or was beyond the control

of PISD. Evidence was admitted in the form of testimony from Suzie Jameson, PISD’s

Informational Technology Officer, that she instructed SchoolCenter to transfer all

hyperlinks from the then-existing PISD website to the new website. Neither Linder nor

Jameson was aware that SchoolCenter failed to transfer the hyperlinks until May of 2009

when Thanedar notified Linder that the notices were not posting to the website. The trial

court impliedly found that this was a technical problem that was beyond PISD’s control.

We conclude that sufficient evidence was admitted to allow reasonable minds to conclude

that SchoolCenter’s failure to transfer hyperlinks was a technical problem. Further, the

evidence is uncontroverted that, upon discovery of the missing hyperlinks, PISD



                                           10
contacted SchoolCenter to have them correct the error. Consequently, evidence was

admitted supporting the trial court’s determination that PISD’s failure to post meeting

notices during the period between January 15 and May 19, 2009, was beyond the control

of PISD. Therefore, there was sufficient evidence to support the trial court’s determination

that PISD made a good faith attempt to post meeting notices to its website between

January 15 and May 19, 2009.


       Appellants argue that any evidence about Boardbook or SchoolCenter should have

been excluded as a discovery sanction against PISD. However, the exact nature of the

claimed discovery abuse is unclear. It appears that appellants contend that PISD’s failure

to produce contracts with Boardbook and SchoolCenter obligates the trial court to exclude

any evidence relating to either service provider. We fail to see the relevance of contracts

with either of these providers, and we note that PISD did not attempt to offer these

contracts into evidence during trial. All of the evidence that was relevant to issues with

Boardbook and SchoolCenter was admitted through the testimony of Jameson and

Linder, who were both subject to cross-examination by appellants.          It appears that

appellants are attempting to challenge the credibility of Linder and Jameson by arguing

that PISD did not obtain services from Boardbook or SchoolCenter in the absence of

contracts with these providers. However, the factfinder is tasked with assessing the

credibility of witnesses. See City of Keller, 168 S.W.3d at 819-20. Clearly, in the present

case, the trial court found Linder and Jameson credible and concluded that PISD met the

good faith exception for failing to post internet notices during the period between January

15 and May 19, 2009.




                                            11
       Appellants additionally contend that Linder’s and Jameson’s testimonies are based

on hearsay, bare assertions, and sham testimony and are barred and must be excluded.

However, a review of appellant’s objections at trial and arguments on appeal make clear

that they confuse the legal concept of hearsay with these witnesses identifying the source

for their personal knowledge of relevant facts. For example, appellants make much of

the fact that Jameson testified that she had no connection with a “technical person” at

SchoolCenter and that her information relating to SchoolCenter came from a salesperson.

While this testimony likely had an effect on the trial court’s assessment of the credibility

of Jameson’s testimony regarding any technical aspect of PISD’s interaction with

SchoolCenter, the fact that she had no contact with anyone at SchoolCenter that has

specific technical knowledge is not hearsay and is not in any manner barred by the rules

of evidence. Further, a witness’s inability to remember particular information goes to the

weight to be afforded the witness’s testimony and does not constitute a bar to that

testimony. Review of the testimony of Linder and Jameson reflects that appellant was

fully able to elicit the limitations of their personal knowledge and identify the sources of

their information. Consequently, we must conclude that the testimony of Jameson and

Linder was properly admitted by the trial court.


       Finally, appellants contend that PISD violated TOMA when it closed the March 26,

2009 meeting after Terrell requested that the meeting be open. See TEX. GOV’T CODE

ANN. §§ 551.074(b), .101. The trial court concluded that there is no evidence that PISD

failed to legally close the March 26 meeting.      Our review of the record shows that

Thanedar testified that PISD admitted that it did not cite the section of TOMA under which

it closed the March 26, 2009 meeting at the time the meeting was closed. However,


                                            12
PISD’s admission was never offered during the trial. The trial court, as factfinder, was

free to disbelieve Thanedar’s testimony. See Texaco, Inc. v. Phan, 137 S.W.3d 763, 768

(Tex. App.—Houston [1st Dist.] 2004, no pet.) (“As factfinder, the trial court is given great

latitude to believe or to disbelieve a witness’s testimony, particularly if the witness is

interested in the outcome.”). Appellants offered recordings of the March 26, 2009 meeting

to show that the meetings were illegally closed but these recordings were excluded by

the trial court on the bases of lack of foundation and hearsay. Appellants did not argue

that these objections were inapplicable when raised and, on appeal, they simply state

that the trial court abused its discretion in excluding this evidence. Our review of the

arguments presented culminating in the trial court’s ruling to exclude these recordings

does not reflect that the trial court abused its discretion. Appellants did not lay a proper

foundation for admission of these recordings and these recordings are hearsay. As such,

we conclude that appellants have not established that PISD violated TOMA by improperly

closing the March 26, 2009 meeting.


        Appellants’ remaining issues relate to the damages to which they claim to be

entitled. Appellants contend that they substantially prevailed in this case and are entitled

to voidance of actions taken by PISD at each of the challenged meetings and an award

of “special damages” including opportunity costs, costs of litigation, and attorney’s fees2

related to this case. However, all of the damages claimed by appellants would require,

at least, a showing that PISD violated TOMA. As we have concluded above, appellants

have failed to meet their burden to prove that PISD violated TOMA as to any of the twenty-


        2 We note that appellants have represented themselves at all stages of this case and, therefore,
have not incurred attorney’s fees in prosecuting this action.


                                                  13
two challenged meetings and, therefore, appellants have failed to establish that they are

entitled to any damages in this case.3


                                               Conclusion


        Having determined that appellants have not met their burden to prove entitlement

to any of their requested relief, we affirm the judgment of the trial court.




                                                                   Judy C. Parker
                                                                      Justice




        3
        We wish to clarify that we are not addressing whether such relief would be appropriate if a plaintiff
in a TOMA case were to prevail.

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