No.

DC-17-15677

MARCY DAVIS (TRUSTEE) FOR IN THE DISTRICT COURT OF

LANNY AND BEVERLY EDWARDS
LIVING TRUST, JAMES ALLEN
GOULD, EDWIN HENRY and PA-
TRICIA DUMAS, BILLY M. BEN-
SON, KIM SINGLETON, VONNIE
and TYNETTE LUNDAY, STAN and
RHONDA MICHELLE SINGLETON, DALLAS COUNTY, TEXAS

Petitioners,

v.

CITY OF MESQUITE, TEXAS,

Defendant. 101st JUDICIAL DISTRICT
______________________________________________________________________________

AMENDED BRIEF OF AMICUS CURIAE

THE OFFICE OF THE ATTORNEY GENERAL
IN SUPPORT OF PETITIONERS MARCY DAVIS, ET AL
______________________________________________________________________________

TO THE HONORABLE COURT:

Amicus curiae, the Office of the Attorney General, respectfully submits the fol-

lowing brief in support of Petitioners Marcy Davis, et al (Dallas County Residents):

INTEREST OF AMICUS CURIAE

The Attorney General has a particular interest in this case because he is

charged with protecting the peoples interests in open government meetings. All

elected or appointed public officials must undergo training by the Attorney General

on the responsibilities of a government body and its members under the Open Meet-

ings Act. Tex. Govt Code 551.005. Moreover, public officials who reasonably rely on

Attorney General opinions interpreting the Act possess an affirmative defense to

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 1
prosecution for alleged violations. Id. 551.144(c). As discussed below, this case in-

volves the application of prior Attorney General opinions on the topic of what consti-

tutes proper notice of a government meeting under the Act. The Attorney General

has an interest in ensuring government officials follow those prior opinions. And

when government officials choose to ignore those opinions and thereby commit proce-

dural improprieties, the local prosecuting attorney or the Attorney General may in-

stitute a quo warranto action to seek to void those actions. Tex. Civ. Prac. & Rem.

Code 66.002. Thus, the Office of the Attorney General has an interest in this case.

Neither the Office of the Attorney General nor any of its employees has been

paid or will be paid any fee for preparing this brief.

STATEMENT

On August 15, 2017, the Governor signed Senate Bill 6 into law. Act of Aug 14,

2017, 85th Leg., S.S., S.B. 6, 1-57 (to be codified as amendments to Tex. Local Govt

Code 43.001-.056). Effective December 1, 2017, SB 6 requires a city that wants to

annex land in its extraterritorial jurisdiction (ETJ) to put the annexation to a vote

of the people. Prior to SB 6, annexation was an involuntary process that provided

little recourse for those affected. Cities could annex land simply to boost their tax

base, or annex land for limited purposes, which required residents to follow city ordi-

nances and sometimes even pay city taxes despite living outside the municipality and

having no elected representation. See Senate Research Ctr., Bill Analysis, S.B. 6, 85th

Leg., Spec. Sess. (Tex. Sept. 1, 2017). SB 6 makes annexation more democratic. As a

result, cities throughout Texas are rushing to annex land before December 1 when

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 2
SB 6 will require them to obtain voter approval.1 The City of Mesquite is one of these

cities.

The City of Mesquite (City) initiated its annexation plans in early September

2017. During the City Councils September 5, 2017 meeting, it considered Agenda

Item 17-2944, [a] resolution directing that staff give written notice of the Citys in-

tent to annex certain property in its extraterritorial jurisdiction and draft a service

plan for such area. See Pet. Ex. 1, Mesquite, Tex., City Council Meeting Agenda,

Item 17-2944 (Sept. 5, 2017). The Legislative File for this agenda item notes that the

Citys ETJ is available for annexation until December 1, 2017. Pet. Ex. 2. It recom-

mends adoption of a resolution with an attached description of the area to be annexed,

referred to as Exhibit A. Id. However, Exhibit A attached to the proposed resolu-

tion does not contain a map or any description of the area to be annexed. Instead, it

states: To be determined at the September 5, 2017, City Council meeting. Maps of

the territory subject to annexation shall be incorporated into this Resolution prior to

action, if any. Id.

Subsequent City Council meetings likewise failed to provide Exhibit A as at-

tachments to City resolutions concerning annexation. See Pet. Exs. 7 & 8, Mesquite,

Tex., City Council Meeting Agenda, Items 17-3032, 17-3034, & 17-30372 (Oct. 16,

2017); Pet. Ex. 9, Mesquite, Tex., City Council Meeting Agenda, Item 17-3041 (Oct.

1See Matthew Choi, Cities race to annex land before new Texas law goes into effect Dec. 1, Tex. Tribune,
Nov. 16, 2017, https://www.texastribune.org/2017/11/16/mesquite-pearland-among-cities-racing-an-
nex-land-senate-bill-6-goes-ef/; Ray Leszcynski, Cities rush to annex before Dec. 1 when new law will
give votes to people who want to keep it country, Dallas Morning News, Sept. 29, 2017, https://www.dal-
lasnews.com/news/kaufman-county/2017/09/29/cities-rush-annex-dec-1-new-law-will-give-votes-peo-
ple-want-keep-country.

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 3
23, 2017); Pet. Ex. 11, Mesquite, Tex., Emergency Special City Council Meeting

Agenda, Item 1 (Oct. 26, 2017); Pet. Exs. 12 & 13, Mesquite, Tex., City Council Meet-

ing Agenda, Items 17-3062, 17-3066, & 17-3063 (Nov. 6, 2017). In fact, over the course

of these meetings the City changed which land it intends to annex, so the Exhibit A

referenced in the September 5 agenda is not the same as the Exhibit A referenced

in each subsequent meeting agenda. To date, Exhibit A remains unavailable on the

Citys website and is not attached to any relevant resolutions or agendas.

The City employed inadequate meeting notices, which is significant because of

both the topic and the timing of its actions. Annexation is already a controversial

topic, both for current and prospective city residents. Annexation impacts all the cit-

izens around a city. Adding 1020% more land to city limits impacts services provided

to residents, infrastructure demands and costs, and taxes, among other things. An-

nexation is even more controversial this fall since the Legislature passed and Gover-

nor signed SB 6, which, as of December 1, provides affected residents a voice in the

process, and any annexation prior to that seems intended to avoid SB 6.

The City published meeting agendas that gave residents and landowners no

idea of how much property the City Council was considering for annexation. A resi-

dent reading the Citys meeting notices could have thought the City was considering

annexation of only a single parcel of open land, because the City never provided Ex-

hibit A. In reality, and likely to the shock of many residents, the City considered

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 4
annexing as much as 18% of its current territory.2 Annexation is already an im-

portant topic that demands strict compliance with the Texas Open Meetings Act and

Local Government Code, but this annexation in particular is such a large change in

the Citys size that it makes proper meeting notices all the more important. As dis-

cussed below, to provide residents with little notice of a change of this magnitude

does not comply with Texas law.

ARGUMENT

I. Improper City Council Meeting Notices Render the Citys Annexation

Resolutions Voidable.

The Texas Open Meetings Act (TOMA) requires a municipality to provide

notice, for both open and closed meetings, that reasonably informs the public of the

subjects the municipality intends to discuss. See Tex. Govt Code 551.041 (A gov-

ernmental body shall give written notice of the date, hour, place, and subject of each

meeting held by the governmental body.); Tex. Atty Gen. Op. Nos. JC57 (1999),

GA477 (2006). To determine the adequacy of a particular meeting notice, courts con-

sider various factors. For example, a court will compare the content of the notice to

the action taken at the meeting. Markowski v. City of Marlin, 940 S.W.2d 720, 726

(Tex. App.Waco 1997, no writ). A court may also consider whether the notice de-

parts from any customary practice where such custom establishes an expectation in

2The City publicly reports its size as 29,574 acres. See Mesquite, Tex., Demographics, Land Use (2010),
available at https://www.cityofmesquite.com/1639/Demographics (last visited Nov. 17, 2017). 29,574
acres is the equivalent of 46.21 square miles. At one point, the City stated that it intended to annex
8.625 square miles of land within its ETJ. See Mesquite, Tex., Annexation, Notice of Public Hearing
#1, available at https://www.cityofmesquite.com/1820/Annexation (last visited Nov. 27, 2017). 8.625
square miles is 18% of the Citys current size of 46.21 square miles.

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 5
the public about the subject of the meeting. River Rd. Neighborhood Assn v. S. Tex.

Sports, 720 S.W.2d 551, 557 (Tex. App.San Antonio 1986, writ dismd).

When the subject slated for discussion [is] one of special interest to the public,

such as the annexation of private property, the law imposes a heightened notice

standard. Cox Enters., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist., 706 S.W.2d 956,

959 (Tex. 1986); see also Point Isabel Indep. Sch. Dist. v. Hinojosa, 797 S.W.2d 176,

179-81 (Tex. App.Corpus Christi 1990, writ denied). For example, the listing of par-

ticular block numbers for condemnation by a city is sufficient notice, City of San An-

tonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991), but a general map,

or no map, is not. Underlying these considerations is the fact that the provisions of

the Act are mandatory and are to be liberally construed in favor of open government.

City of Farmers Branch v. Ramos, 235 S.W.3d 462, 467 (Tex. App.Dallas 2007, no

pet.) (citing Willman v. City of San Antonio, 123 S.W.3d 469, 473 (Tex. App.San

Antonio 2003, pet. denied)).

In several cases, Texas courts have found the subject matter of a meeting in-

adequately described in a notice. In Cox Enterprises. v. Board of Trustees of Austin

Independent School District, the Texas Supreme Court considered a meeting notice

that included general terms such as personnel, litigation, and real estate mat-

ters. 706 S.W.2d at 957. After explaining that notice under the Act should specifi-

cally disclose the subjects to be considered at the upcoming meeting the court held

that those general terms did not provide full and adequate notice, particularly where

the subject slated for discussion was one of special interest to the public. Id. at 959.

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 6
 In a 2000 opinion, this office concluded that the generic notice employee brief-

ing sessions was inadequate under the Act. Tex. Atty Gen. Op. No. JC-0169 (2000)

at 5. The opinion reasoned that because a governmental body exercises control over

its staff, it presumably can ascertain in advance what subjects will be addressed, such

that those subjects should be included in the meeting notice. Id.

In 2001, the Third Court of Appeals applied this same reasoning to comments

by members of the governmental body itself. Hays Cty. Water Planning Pship v.

Hays Cty., 41 S.W.3d 174, 180 (Tex. App.Austin 2001, pet. denied) (citing Tex. Atty

Gen. Op. No. JC-0169 (2000)). There, the court considered the following posting:

Presentation by Commissioner Russ Molenaar. Id. at 178. The court held that

[p]resentation is a vague description. There is nothing in the posting that would

give a resident of Hays County any inkling of the substance of Molenaars proposed

presentation. Id. at 180. The posting failed to inform a reader as a member of the

interested public . . . of the topics to be addressed by Molenaar. Id.

Based on these cases and standards, the notices for the City Council meetings

on September 5, October 16, 23, and 26, and November 6 and 13 fail to comply with

the Open Meetings Act, and were inadequate as a matter of law. See City of Port

Isabel v. Pinnell, 207 S.W.3d 394, 406 (Tex. App.Corpus Christi 2006, no pet.) (ex-

plaining in an annexation case that [i]f the contents of a notice are undisputed, its

adequacy is a question of law); City of Farmers Branch, 235 S.W.3d at 467 (providing

that the Open Meetings Act should be liberally construed in favor of open govern-

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 7
ment). The City Council agendas and associated resolutions do not provide any de-

scription of property the City intends to annex. The meeting notices and resolutions

did not include Exhibit A, or any geographical description of the proposed annexa-

tion. In fact, as of September 29, the City had not yet formulated a full annexation

plan and [j]ust because someone received notification [of annexation] doesnt mean

theyre being annexed.3 If the City cannot decide what it is annexing, nearby resi-

dents cannot perceive if they are affected. And like the notices at issue in Hays County

Water Planning Partnership and Attorney General Opinion JC-0169, the governmen-

tal body should ascertain in advance of the open meeting the subjects to be addressed.

Hays Cty. Water Planning Pship, 41 S.W.3d at 180; Tex. Atty Gen. Op. No. JC-0169

(2000) at 5.

II. Improper Annexation Notices Render the Citys Annexation Resolu-

tions Voidable.

When a municipality intends to annex land, it must provide written notice of

the proposed annexation to the property owners with enough information to allow

them to determine whether their property is affected. Texas Local Government Code

section 43.062(b) provides that a municipality shall give written notice of its intent

to annex [an] area to: (1) each property owner in an area proposed for annexation, as

indicated by the appraisal records furnished by the appraisal district for each county

in which the area is located. Tex. Local Govt Code 43.062(b). Moreover, section

3 Leszcynski, supra note 1.

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 8
43.063(c) requires the City to post notice of the [annexation] hearings on the munic-

ipalitys Internet website if the municipality has an Internet website. Id. 43.062(c).

Implicit in this internet notice requirement is the idea that the notice provided online

must sufficiently describe the land considered for annexation.

The Citys annexation notices on its website do not comply with the Local Gov-

ernment Code because they do not specify which land the City intends to annex. Even

though the City appears to have four annexation plans posted elsewhere on its web-

site now, Exhibit A is found nowhere on that portion of the website or the City

Council agendas website, and the four annexation plans that are posted do not specify

which properties the City intends to annex. These notices do not satisfy the require-

ments of the Local Government Code.

Failure to follow the requirements of the Local Government Code and Open

Meetings Act renders the Citys annexation decisions voidable under the Texas Open

Meetings Act and even automatically void in some circumstances. Tex. Govt Code

551.141, .142; see Alexander Oil Co. v. City of Seguin, 825 S.W.2d 434 (Tex. 1991)

(annexations exceeding size limits and other legislative requirements held void); Dea-

con v. City of Euless, 405 S.W.2d 59, 64 (Tex. 1966) (annexation ordinance exceeding

Legislative size limits is utterly void); In re City of Mesquite, No. 05-17-01303-CV,

2017 WL 5559859, at *1 (Tex. AppDallas, Nov. 14, 2017, no pet.) (mem. op.) (hold-

ing that an interested person may bring an action including an injunction to stop,

prevent, or reverse a violation of the Open Meetings Act); City of Port Isabel v. Pinnell,

207 S.W.3d at 406 (holding that an annexation may be challenged under the Texas

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 9
Open Meetings Act); City of San Antonio v. Hardee, 70 S.W.3d 207, 212-13 (Tex.

App.San Antonio, 2001, no pet.) (holding that citizens may have an annexation de-

clared void under Open Meetings Act where a single challenge to the Citys alleged

violation would invalidate the annexation in its entirety).4

The Court should issue an injunction to prevent the City from taking this un-

lawful action.

III. Improper Use of Emergency Meetings Renders the Citys Associated

Activity Voidable.

Improper use of an emergency meeting is unlawful. The notice of a meeting of

a governmental body must be posted in a place readily accessible to the general public

at all times for at least 72 hours before the scheduled time of the meeting. Tex. Govt

Code 551.043(a). One exception to the seventy-two hour rule is for an emergency

or when there is an urgent public necessity. Id. 551.045(a). But the requirements

for an emergency meeting are quite strict. Tex. Atty Gen. Op. No. JC-0308 (2000)

at 2.

An emergency meeting may be held only if immediate action is required of

a governmental body when there is (1) an imminent threat to public health and

4 In Town of Fairview v. Lawler, 252 S.W.3d 853, 856 (Tex. App.Dallas 2008, no pet.), the Dallas
Court of Appeals stated that the only way to challenge annexation as voidable is through a quo war-
ranto proceeding by the district attorney or Attorney General. However, Lawler misread the primary
precedent it relied on. One of those cases, Hardee, 70 S.W.3d at 210, 212-13, held that appellees . . .
have standing to challenge the annexation . . . under the Open Meetings Act. The Corpus Christi
Court of Appeals agrees with Hardee. See Pinnell, 161 S.W.3d at 241-42 (citing Tex. Govt Code
551.142) (A citys annexation may be challenged under the Texas Open Meetings Act, which pro-
vides guidelines for standing to sue that are different from the common law test . . ..). Thus, Lawler
misread Hardee. Private citizens may challenge annexation proceedings that violate the Open Meet-
ings Act.

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 10
safety; or (2) a reasonably unforeseeable situation. Tex. Govt Code 551.045(b). Fur-

ther, the governmental body must clearly identify the emergency or urgent public

necessity in the notice or supplemental notice under this section. Id. 551.045(c).

The mere recitation of the statutory language does not clearly identify the emergency

or urgent public necessity; rather, an emergency is clearly identified when the reason

for the emergency is stated in the notice. Piazza v. City of Granger, 909 S.W.2d 529,

553 (Tex. App.Austin 1995, no writ). Importantly, the reason for an emergency

meeting cannot be reasonably unforeseeable when the meeting is called to take an

action required by statute. Tex. Atty Gen. Op. No. JC406 (2001).

A public body must clearly identify the nature of the emergency in the notice.

See Tex. Govt Code 551.045(c). As the court said in River Road Neighborhood As-

sociation v. South Texas Sports, 720 S.W.2d 551, 557 (Tex. App.San Antonio 1986,

writ dismd w.o.j.):

[T]he term generally refers to an unforeseen combination of circum-

stances that calls for immediate action; a sudden or unexpected occasion
for action. The mere necessity for quick action does not constitute an
emergency where the situation calling for such action is one which rea-
sonably should have been anticipated. The Texas Supreme Court has
said that an emergency is a condition arising suddenly and unexpect-
edly, not caused by any neglect or omission of the person in question,
which calls for immediate action.

Id. (citations omitted).

Here, the City violated the emergency meeting requirements of the Open Meet-

ings Act.

The City called an emergency meeting on October 26, 2017 for the following

reason:

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 11
 Relocation and delay of this meeting is an urgent public necessity be-
cause the cancellation of Heartland Fellowship Baptist Church was un-
foreseen, and the need to proceed with the noticed public hearing is im-
perative to provide interested parties the opportunity to express their
views on the Annexation, consistent with and in the spirit of Chapter 43
of the Texas Local Government Code, presenting an urgent public ne-
cessity.

Pet. Ex. 11, Mesquite, Tex., Emergency Special City Council Meeting Agenda,

Item 1 (Oct. 26, 2017). According to the Local Government Code, before the City may

institute annexation proceedings, it must conduct two public hearings at which per-

sons interested in the annexation are given the opportunity to be heard. The hearings

must be conducted on or after the 40th day but before the 20th day before the date of

the institution of the proceedings. Tex. Local Govt Code 43.063(a).

The use of an emergency meeting on October 26 violated the Open Meetings

Act because the reason for the emergency was not reasonably unforeseeable. The City

called the meeting to act on annexation proceedings required by the Local Govern-

ment Code. But the City could have simply acted at a future, properly noticed meet-

ing. Moreover, it is Amicuss understanding that the City took no action at this meet-

ing, even though the plain language of the Open Meetings Act requires that a gov-

ernment convene an emergency meeting only if immediate action is required of a

governmental body[.] Tex. Govt Code 551.045(b).

Furthermore, the City continues changing which land it intends to annex, so

it could have maintained compliance with the Local Government Code without the

need for an emergency meeting by setting the meeting for a later date. At worst, the

City could notice a later hearing or plan for annexation under SB 6, which would,

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 12
contrary to the Citys declared reason for an emergency, give the citizens more in-

put. Instead, the City appears to have convened an emergency meeting for the sole

purpose of minimizing citizen input on a public matter, which does not rise to the

level of an emergency under the clear language of the Open Meetings Act, and, in

fact, runs contrary to the purposes of the Open Meetings Act altogether, which are

to enable public access to and to increase public knowledge of government deci-

sionmaking. Fourth Ct. of Appeals, 820 S.W.2d at 765 (emphasis added). The emer-

gency meeting notice renders the annexation voidable.

IV. Annexation of More than 10% of a Citys Incorporated Area Is Void.

A municipality may not annex a total area greater than 10% of the incorpo-

rated area of the municipality as of January 1 of that year, plus any amount of area

carried over from a prior year. Tex. Local Govt Code 43.055(a). At the October 16,

2017, City Council meeting, the City stated that it was considering annexation of

approximately 8.625 square miles of territory within the Citys ETJ. See Pet. Ex. 7,

Mesquite, Tex., City Council Meeting Agenda, Item 24 (Oct. 16, 2017). The Citys

website also states that the City intends to annex 8.625 square miles of ETJ. See City

of Mesquite, Annexation, Proposed Annexation (Updated as of Oct. 2017),

https://www.cityofmesquite.com/1820/Annexation (last visited November 28, 2017).

But more recent City Council meetings indicate the City intends to annex 5.714

square miles. See Pet. Ex. 9, Mesquite, Tex., City Council Meeting Agenda, Item 2

(Oct. 23, 2017); Pet. Ex. 11, Mesquite, Tex., Emergency Special City Council Meeting

Agenda, Item 1 (Oct. 26, 2017); Pet. Exs. 12 & 13, Mesquite, Tex., City Council Meet-

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 13
ing Agenda, Item 27 (Nov. 6, 2017). The Citys proposed annexation may violate sec-

tion 43.055 of the Local Government Code.

The Texas Supreme Court and lower courts have repeatedly held annexations

automatically void when they, like this one appears to, exceed the 10% rule, because

they are made without statutory power and utterly void. Deacon, 405 S.W.2d at 64

(holding that citizens may challenge and succeed against annexation because an an-

nexation ordinance exceeds size limits set by the Legislature and is utterly void);

City of Waco v. City of McGregor, 523 S.W.2d 649, 652 (Tex. 1975) (holding that it was

clear that an annexation was void when it was passed since it attempted to annex

territory that statutes prohibited).

CONCLUSION AND PRAYER

The obvious inadequacies in the Citys meeting and annexation notices, im-

proper use of the emergency meeting mechanism, and possible violation of the cap on

how much land the City may annex this year are not technical violations of Texas

law. They are major violations. Annexation is already a controversial topic because it

changes the rights and responsibilities of each community member, and it is espe-

cially controversial given the Citys rush to annex before December 1, when those

impacted by annexation would be entitled to vote on the Citys decision. Thus, the

Court should grant the Dallas County residents motion and continue to enjoin the

City of Mesquite from annexing land prior to December 1, 2017.

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 14
 Respectfully submitted on this 28th day of November, 2017.

K EN P AXTON
Attorney General of Texas
J EFFREY C. M ATEER
First Assistant Attorney General
B RANTLEY D. S TARR
Deputy First Assistant Attorney General
J AMES E. D AVIS
Deputy Attorney General for Civil Litigation
D AVID J. H ACKER
Special Counsel for Civil Litigation

/s/Cleve W. Doty
C LEVE W. D OTY
Texas Bar No. 24069627
Assistant Attorney General
O FFICE OF THE A TTORNEY G ENERAL
P.O. Box 12548, Mail Code 018
Austin, Texas 78711-2548
Telephone: (512) 475-4136
Facsimile: (512) 320-0167
cleve.doty@oag.texas.gov
Counsel for Amicus Curiae

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 15
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing pleading has been
served on all counsel of record or unrepresented parties on this 28th day of November,
2017, in accordance with Rule 21a of the Texas Rules of Civil Procedure, electronically
through the electronic filing manager or by certified registered U.S. Mail.

/s/ Cleve W. Doty

Cleve W. Doty

Brief of Amicus Curiae the Office of the Attorney General in Support of Petitioners Page 16