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HomeMy WebLinkAbout12/13/2005 - Regular Agenda Packet - Parks Board(*tll PARKS AND RECREATION ADVISORY BOARD AGENDA CITY OF COLLEGE STATION REGULAR MEETING ,.► 7:00 PM Tuesday, December 13, 2005 The EXIT Teen Center 1520 Rock Prairie Road • College Station, Texas 1. Call to order. 2. Pardon and possible action concerning requests for absences of members. 3. Hear visitors. 4. Consideration, possible approval, and discussion of minutes from the Regular Meeting of November 8, 2005. 5. Consideration, possible action, and discussion regarding potential Park Land Dedication requests: • Olden Homeplace N Park Zone 14 6. Consideration, possible action and discussion regarding Park Land Dedication Ordinance revisions. 7. Consideration and discussion regarding the Open Meetings and Public Information Act. 8. Report, possible action, and discussion regarding the joint subcommittee with the Planning and Zoning Commission. 9. Review, possible action and discussion concerning Board and Departmental Goals and Objectives, and City Council Strategic Plan. 10. Report, possible action, and discussion concerning the Capital Improvement Program: • Park Land Dedication Project List • Current Capital Improvement Project List • Veterans Park & Athletic Complex 11. Discussion of calendar, future meeting dates, and possible agenda items: • Next Regular meeting N January 10, 2006 12. Adjourn. The building is wheelchair accessible. Handicap parking spaces are available. Any request for sign interpretive services must be made at least 48 hours before the meeting. To make arrangements call (979) 764-3517 or (TDD) 1-800-735-2989. Agendas may be viewed on www.cstx.aov. Notice is hereby given that a Regular Meeting of the Parks and Recreation Advisory Board of College Station, Texas will be held on the 13th day of December, 2005 at 7:00 p.m. at the EXIT Teen Center, 1520 Rock Prairie Road, College Station, Texas. The following subjects will be discussed, to wit: See Agenda. Posted this the day of , 2005, at p.m. City of College Station, Texas 1311 Connie Hooks, City Secretary I, the undersigned, do hereby certify that the above Notice of Meeting of the Parks and Recreation Advisory Board of the City of College Station, Texas is a true and correct copy of said Notice and that I posted a true and correct copy of said notice on the bulletin board at City Hall, 1101 Texas Avenue, in College Station, Texas and on the City's website, www.cstx.4_ ov. The Agenda and Notice are readily accessible to the general public at all times. Said Notice and Agenda were posted on at , and remained so posted continuously for at least 72 hours preceding the scheduled time of said meeting. This public notice was removed from the official posting board at the College Station City Hall on the following date and time: by Dated this day of , 2005 CITY OF COLLEGE STATION, TEXAS RIM STATE OF TEXAS ) COUNTY OF BRAZOS ) Subscribed and sworn to before me on this the day of , 2005. Notary Public - Brazos County, Texas My commission expires: PARKS AND RECREATION ADVISORY BOARD MINUTES CITY OF COLLEGE STATION REGULAR MEETING N 7:00 PM Tuesday, December 13, 2005 The EXIT Teen Center 1520 Rock Prairie Road • College Station, Texas Staff Present: Steve Beachy, Director; Eric Ploeger, Assistant Director; Pamela Springfield, Staff Assistant Members Present: Gary Erwin; Harry Green; John Crompton; Gary Thomas; Kathleen Ireland; Glenn Schroeder Members Absent: Jodi Warner, Chair; Jeannie McCandless; Carol Blaschke Visitors: 1. Call to order. Glenn S., in Jodi Warner's absence, called the meeting to order at 7:01 p.m. 2. Possible action and oardon concernina reauests for absences of members,. Three requests for absence had been submitted by Jodi Warner, Chair; Carol Blaschke; and Jeannie McCandless, Kathleen I. moved to approve the three requests for absence that had been submitted. Gary E. seconded and the vote was called. All were in favor and the motion passed unanimously. 3. Hear visitors. Hearing none this item was closed. 4. Consideration, oossible action, and discussion of minutes from the reaular meetina of November 8, 2005. John C. moved approval of the November minutes as submitted. Gary T. seconded and the vote was called. All were in favor and the motion passed unanimously. 5. Consideration, possible action, and discussion reaardina ootential Park Land. Dedication reauest$: • Olden Homeplace N Park Zone 14: A Park Land Dedication Checklist had been included in the members' packets. This would create one single-family residence near the landfill on E. Rock Prairie Road. Staff was recommending acceptance of the $556 in development fees, in lieu of the .01-acre land dedication. John C. moved approval of the funds in lieu of the land dedication. Kathleen I. seconded the motion. The vote was called. All were in favor and the motion carried unanimously. The building is wheelchair accessible. Handicap parking spaces are available. Any request for sign interpretive services must be made at least 48 hours before the meeting. To make arrangements call (979) 764-3517 or (TDD) 1-800-735-2989. Agendas may be viewed on www.cstx.00v. 6. Consideration, uossible action, and discussion on the Park Land Dedication Ordinance Revisions. A copy of the presentation that would be shown at the Thursday, December 15, 2005 City Council meeting, was handed out to the members. Steve explained that the original ordinance, which had been passed in 1975, had last been updated in 2002. That 2002 version was the one that would be going to Council for approval. The Board had last reviewed the ordinance in August at the joint meeting with Planning & Zoning. A three-year cycle for review of the ordinance had been recommended. Steve stated that since the August review, there had been a change in the inclusion of language defining the process for phased subdivision developments (see page 3 of the Ordinance N Section 1, D). The developer will now be required to either dedicate land up front or provide for the financial security of the land up front. This is being done so that in case the development is not completed, the park can still be developed. It also provides three different ways to determine the market value in order to set that financial guarantee. Steve explained that because it has taken so long to get the 2002 revisions approved, the Board has already begun discussions for the next review. Staff was sending out notices to some Texas cities to see what dedication ordinances they have in place. Staff is hoping to be able to gather good information from that effort. Hearing no discussion, John C. moved approval of the changes and to forward the revisions on to the City Council. Gary E. seconded. The vote was called and all were in favor of the revisions. The motion passed unanimously. 7. Consideration. uossible action, and discussion reaardina the Ouen Meetinas and Public Information Act. Steve said that there had been some changes in the open meetings and public information laws over the past year. The City Secretary was currently attending a conference to learn about those changes and would attend the January regular meeting to go over them with the Board. A few of the items that will be discussed: ■ Board and committee members will have to be certified regarding Open Meetings and Public Information laws. Staff was not sure if that was a state or local law. ■ Agendas, by law, have to be posted 72 hours prior to the meeting; and, by city policy within five business days. ■ Members cannot discuss items not listed on the agenda. ■ Members discussing board issues or meeting one-on-one about board issues would be in violation of the Open Meetings Act. • All city boards and committees must follow the same rules and regulations. As the governing board for the Lincoln Center, the Senior Advisory Committee, and the Conference Center Advisory Committee, the Parks and Recreation Advisory Board would not be responsible for what those committees do. However, it may be better to have volunteer groups rather than those formal committees. The City Secretary will further define some of these issues in January. This was an informational item only and no action was required. S. Reuort, uossible action. and discussion reaardina the ioint subcommittee with the Plannina and Zonina Commission. Two meetings had been held with the main discussion relating to the Greenways Coordinator position (which department the position should be located in) and community appearance issues. No recommendations have come back from the group yet, but one of the issues discussed at the last meeting was the 1992 Streetscape Ordinance. Steve stated that the ordinance was very good but was not being used. The joint subcommittee was just getting started and had no set schedule for the meetings. More reports would be forthcoming. This was an informational item only, with no action required. 9. Review, possible action, and discussion concernina Board and Departmental Goals and Obiectives, and City Council Strateaic Plan. ■ Nothing much was known about the status of the update to the City Council Strategic Plan. ■ In February or March, Parks Planning staff would have a report on a detailed list that was being put together on all of the parks. Each park was being looked at individually to see what upgrading could be done as far as the facilities and appearance of the parks is concerned. The list will help when it comes to future bond programs and will define what specifics to ask for. John C. asked if a major tree planting program could be integrated as part of that. Steve stated that this was doable and appropriate; explaining that the Department tries to plant trees for spring color, summer color, fall color, and trees that are evergreen for winter. ■ One goal next year for Curtis Bingham, the Parks Operations Superintendent, is to create a network of neighborhood park contacts - citizens that would be willing to be the eyes and ears for a particular park near where they live. They can call the department if there is a problem, but can also provide feedback and help with the flow of information back and forth between the city and the citizens. This was tied in with the list that Parks Planning was doing and there would be more information in the future. • Goals - Steve explained that when the board set up their goals, some were based on the City Council Strategic Issues. Those goals and objectives help to build the department's goals and the department goals directly support the Board and Council. Hearing no further discussion, this item was closed. 10. Reuort. possible action, and discussion concernina the Capital Improvement Proaram. Updated lists had been included in the members' packets. • Park Land Dedication Project List: Some of the projects on the list were making substantial progress. • Current Capital Improvement Project List: The support buildings project at Wolf Pen was moving forward. The Wolf Pen Creek TIF Board was very excited about the plans. The goal was to put the project out to bid in late March. A new ticket office, management office, and concession stand will be built. Giving a plaza for concessions will move it away from the hill and the people watching the concerts. A building for the performers will have restrooms, showers, a green room, and a smoking deck. There will be a room that will be big enough to hold meetings and will provide performers with a view of the amphitheater and the crowd before they go on stage. Sheila Walker is now responsible for events and programming in the corridor, as well as the amphitheater. a Veterans Park & Athletic Complex: Staff was making plans to put this project out to bid on December 22, 2005. John C. asked if trees would be going in around the pathways. Ric stated that there would be some going in around the trails. John C. asked if a lot of trees could be installed. Ric explained that two different cost estimates for the project had been received for this second phase and if the estimates are good, there should be quite a bit of money left over to plant additional trees. He added that, although it does not look like it because they are younger, there were 350-400 trees planted in the first phase. The contract for construction should go to council in early February. The design process went extremely well and the project itself will be over 6 million. 11. Discussion of calendar, future meetinai dates, and uossible aaenda items: ■ January Regular meeting N January 10, 2006 ■ Requests for future agenda items: N In January, the City Secretary would do a presentation on open meetings laws; N An agenda item for discussion of the future park site on E. Rock Prairie and the landfill site; N Discussion regarding the merits of appointing a graduate student to sit on the board; N An update on the line-up for athletic tournaments for 2006; and N Public appearance issues and the City's Streetscape Plan. 12. Adiourn. Kathleen I. moved to adjourn the meeting and Gary E. seconded. All were in favor. The meeting adjourned at 8:10 p.m. Date Received: Park Zone: Current Zone Balance: Project Location: Name of Development: Phase: Applicant: Address: City/State/Zip: Phone Number/Fax: E-mail: Engineer/Planner: Address: City/StateZip: Phone Number/Fax: E-Mail: REQUIRED COMPLIANCE Park Land Dedication Ordinance Project Review Checklist 11-29-05 14 $13,344 Rock Prairie Rd. Olden Homeplace N/A Arthur Olden Family Trust & Dolly Olden 7804 Rock Prairie Rd. East College Station, TX 77845 979-690-6819 Fax Number: Joe Orr Inc. 2167 Post Oak Circle College Station, TX 77845 979-690-3378 Section 10-B-1: Land Dedication Single Family Dwelling Units: 1 Multi -Family Dwelling Units: Total Land Requirement: .01 Acres Proposed Dedication: 0 Section 10-B-2: Fee in Lieu of Land Fax Number: Has the Planning and Zoning Commission's approval been obtained? No Land Fee: Single Family Fee ($198/dwelling unit): $198 x 1 = $198.00 Multi -Family Fee ($160/dwelling unit): Total Acquisition Fee: Section 10-13-3: Park Development Fee Single Family Fee ($358/dwelling unit): Multi -family Fee ($292/dwelling unit): Total Fee Amounts: Total Single Family Fee ($556/dwelling Unit): Multi -Family Fee ($452/dwelling Unit): Section 10-13 4: Park Development in Lieu of Fee Required development cost: Staff review date and comment: 12-01-05 Parks Board review and decision: 12-13-05 Section 10-13-5: Minimum Park Size Is the proposed park less than five (5) acres? If yes, staff recommends: Section 10-13-7: Prior Park Acquisition $358.00 x 1 = $358.00 $556 x 1 = $556.00 N/A Is there an existing park that can serve the proposed development? If yes, staff recommends: Section 10-E: Comprehensive Plan Is the proposed park dedication in compliance with the City's Comprehensive Plan and the Recreation, Park, and Open Space Master Plan? Comments: Section 10-F: Additional Information 1. Island in the 100-year floodplain? NO Percentage: a. Detention/Retention? NO Size: Meets Board Policy? Acreage in floodplain: None Percentage: Acreage in detention: None Percentage: Acreage in greenways: None Percentage: Comments: Section 10-F (of the Park Land Dedication Ordinance) 10-F. 1 Any land dedication to the City under this section must be suitable for park and recreation uses. Consideration will be given to land that is in the floodplain or may be considered "floodable" even though not in a federally regulated floodplain as long as, due to its elevation, it is suitable for park improvements. (a) Neighborhood park sites should be adjacent to residential areas in a manner that serves the greatest number of users. Comments: (b) Neighborhood park sites should be located so that users are not required to cross arterial roadways to access them. Comments: (c) Sites should not be severely sloped or have unusual topography which would render the land unusable for organized recreational activities. Comments: (d) Sites should have existing trees or other scenic elements. Comments: (e) Detention/retention areas will not be accepted as part of the required dedication, but may be accepted in addition to the required dedication. If accepted as part of the park, the detention/retention area design must be approved by the City staff and must meet specific parks specifications. Comments: 10-F. 2 Parks should be easy to access and open to public view so as to benefit area development, enhance the visual character of the city, protect public safety, and minimize conflict with adjacent land uses. The following guidelines should be used in designing parks and adjacent development: (a) Where physically feasible, park sites should be located adjacent to greenways and/or schools in order to encourage both shared facilities and the potential co -development of new sites. Comments: (b) A proposed subdivision adjacent to a park may not be designed to restrict reasonable access to the park from other area subdivisions. Street and greenway connections to existing or future adjoining subdivisions may be required to provide reasonable access to parks. Comments: (c) Where a non-residential use must directly abut a park, the use must be separated by a screening wall or fence and landscaping. Access points to the park may be allowed by the Planning and Zoning Commission if a public benefit is established. Comments: (d) It is desirable that a minimum of fifty percent (50%) of the perimeter of a park should abut a public street. In all cases, the City shall approve the proposed street alignment fronting on city parks. Comments: (e) Streets abutting a park shall be built in accordance with the thoroughfare plan and the standards of this ordinance; however, the City may require any residential street built adjacent to a park to be constructed to collector width to ensure access and prevent traffic congestion. The developer may request oversize participation in such an instance. Comments: Staff Recommendations: Acceptance of parkland dedication fee Section 10-G: Approval: At the regular meeting on December 13, 2005, the Board voted unanimously to accept the dedication fees of $556 in lieu of land. Parks and Recreation Advisory Board: Planning & Zoning Commission: City Council: SOUTHWO %"VALLEY ott\e EMERALD FOREST FOXFIR REEK ck Prairie Road OLDEN HOMEPLA CE FW s � SHENANDOAH Hwv. 40 1 " = 1 mile Vicinity Map CARTER LAKE oa �0 ej Te, PEBBLE ,cam. 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AN ORDINANCE AMENDING CHAPTER 9, "SUBDIVISIONS", SECTION 10, "REQUIREMENTS FOR PARKLAND DEDICATION", OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, BY AMENDING CERTAIN SECTIONS AS SET OUT BELOW; PROVIDING A SEVERABILITY CLAUSE; DECLARING A PENALTY; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That Chapter 9, Section 10 "Requirements for Park Land Dedication", of the Code of Ordinances of the City of College Station, Texas, be amended as set out in Exhibit "A", attached hereto and made a part of this ordinance for all purposes. PART 2: That if any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall remain in full force and effect. PART 3: That any person, firm, or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not less than Twenty Five Dollars ($25.00) nor more than Two Thousand Dollars ($2,000.00). Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense. Said Ordinance, being a penal ordinance, becomes effective ten (10) days after its date of passage by the City Council, as provided by Section 34 of the Charter of the City of College Station. PASSED, ADOPTED and APPROVED this ATTEST: Connie Hooks, City Secretary City Attorney day of , 2005. APPROVED: RON SILVIA, Mayor D/groupliegat/ordinance/amendmentform. doc ORDINANCE NO. EXHIBIT "A" Page 2 That Chapter 9, "Subdivisions", of the Code of Ordinances of the City of College Station, Texas, is hereby amended by amending Section 10: "Requirements for Park Land Dedication" by deleting Subsections I OA through 1 OH and substituting the following: "SECTION 10: Requirements For Parkland Dedication 10-A Purpose This section is adopted to provide recreational areas in the form of neighborhood park facilities as a function of subdivision and site development in the City of College Station. This section is enacted in accordance with the home rule powers of the City of College Station, granted under the Texas Constitution, and the statutes of the State of Texas, including, but not by way of limitation, Texas Local Government Code Chapter 212 (Vernon 1999; Vernon Supp. 2004-2005) as amended from time to time. It is hereby declared by the City Council that recreational areas in the form of neighborhood parks are necessary and in the public welfare, and that the only adequate procedure to provide for neighborhood parks is by integrating such a requirement into the procedure for planning and developing property or subdivisions in the city, whether such development consists of new construction on vacant land or rebuilding and remodeling of structures on existing residential property. Neighborhood parks are those parks providing for a variety of outdoor recreational opportunities and located within convenient distances from a majority of the residences to be served thereby. The park zones established by the Parks and Recreation Department and shown on the official Parks and Recreation map for the City of College Station shall be prima facie proof that any park located therein is within such a convenient distance from any residence located therein. The primary cost of neighborhood parks should be borne by the ultimate residential property owners who, by reason of the proximity of their property to such parks, shall be the primary beneficiaries of such facilities. Therefore, the following requirements are adopted to effect the purposes stated above and shall apply to any land to be used for residential purposes: 10-B General Requirements The City Manager or his designee shall administer this Section 10, Requirements for Parkland Dedication with certain review, recommendation and approval authorities being culp:lgrouplagen-cahcouncil agendas lin-review10512151parks and recreationlparkland dedication ordinanceU chapter 9 amendment parkland rev 1017 05.doc 1216105 ORDINANCE NO. Page 3 assigned to the Planning and Zoning Commission and the Parks and Recreation Advisory Board as specified herein. Dedications shall cover both land acquisition and development costs for neighborhood parkland for all types of residential development. Dedications shall be based on actual dwelling units for the entire development. Increases or decreases in final unit count prior to final plat will require an adjustment in fees paid or land dedicated. If the actual number of dwelling units exceeds the original estimate additional parkland shall be dedicated in accordance with the requirements in this Section 10 with the filing of a final plat. The methodology used to calculate fees and land dedications is attached hereto as Appendix 1 and incorporated and made a part of this ordinance for all purposes. Fees paid under this Section may be used only for development or acquisition of a neighborhood park located within the same Zone as the development. 1. Land Dedication For single family developments the area of land to be dedicated for parkland purposes shall be equal to one (1) acre for each one hundred one (101) dwelling units. For duplex and other multi -family development this area shall be equal to one (1) acre for each one hundred twenty-five (125) dwelling units. The total amount of land dedicated for the development shall be dedicated in fee simple by plat: a. Prior to the issuance of any building permits for multi -family development, b. Concurrently with the final plat for a single phase development, C. For a phased development the entire park shall be either platted concurrently with the plat of the first phase of the development or d. The developer may provide the City with financial security against the future dedication by providing a bond, irrevocable letter of credit, or other alternative financial guarantee such as a cash deposit in the amount of the appraised value of the parkland. The amount of the financial guarantee is calculated by multiplying the number of acres of parkland required to be dedicated by the average value of an acre of land in the subdivision. The average value of an acre of land in the subdivision is calculated by dividing the fair market value of the land in the subdivision by the number cu1p:lgrouplagen-callcouncil agendas lin-review10512151parks and recreationlparkland dedication ordinancelI chapter 9 amendment parkland rev 1017 05.doc 1216105 ORDINANCE NO. Page 4 of acres in the subdivision. To make this calculation, the subdivider may select one of the following fair market value determinations: i. the current fair market value of the land as shown on the records of the tax appraisal district; ii. the current fair market value of the land as determined by a qualified real estate appraiser at the subdivider's expense, if the director of the Parks and Recreation Department approves the appraiser and certifies that the appraisal fairly reflects the land value; or iii. the current fair market value of the land as determined by a qualified real estate appraiser employed by the City. The financial guarantee will be released to the developer, without interest, upon the filing of the final plat for the subsequent phase that dedicates the required park land. 2. Fee in Lieu of Land The amount of the Fee -in -Lieu of Land ("Fee") shall be set at an amount sufficient to cover the costs of the acquisition of neighborhood parkland. A landowner may elect to meet the requirements of Section 10.B.1, in whole or in part, by paying a fee in the amount set forth below. Before making this election, for any required dedication greater than three (3) acres, or for any development containing floodplain or greenway, the landowner must: a. Obtain a recommendation from the Parks and Recreation Advisory Board and b. Obtain approval from the Planning & Zoning Commission pursuant to the Plat Approval Procedures in Article 3.3 of the Unified Development Ordinance. The fee shall be calculated as follows: • One hundred Ninety-eight Dollars ($198.00) per dwelling unit for single family development • One hundred Sixty Dollars ($160.00) per dwelling unit for duplex and multi- family development. culp: Igrouplagen-callcouncil agendas l in-revieW 051215 1parks and recreationlparkland dedication ordinancell chapter 9 amendment parkland rev 1017 05.doc 1216105 ORDINANCE NO. Page 5 The total amount of the Fee calculated for the development shall be remitted: • Prior to the issuance of any building permits for multi -family development or, • Upon submission of each final plat for single family, duplex or townhouse development. Fees may be used only for acquisition or development of a neighborhood park facility located within the same Zone as the development. The City Manager or his designee is authorized to accept the Fee for dedications of less than three (3) acres where: • There is a sufficient amount of parkland existing in the park zone of the proposed development; or • The proposed dedication is insufficient for a Neighborhood Park site under existing park design standards. This determination shall be made based on the Recreation, Park & Open Space Master Plan, as amended from time to time. 3. Park Development Fee In addition to the land dedication, there shall also be a fee established that is sufficient to develop the land to meet the Manual of Neighborhood Park Improvements Standards to serve the zone in which such development is located. This fee shall be computed on the basis of Three Hundred Fifty-eight Dollars ($358.00) per dwelling unit for single family developments and Two Hundred Ninety-two Dollars ($292.00) for duplex and multi -family development. The total fee shall be paid upon submission of each final plat or upon application for a building permit, whichever is applicable. 4. Park Development Option in Lieu of Fee A landowner may elect to construct the neighborhood park improvements in lieu of paying the Park Development Fee under the following terms and conditions: a. A park site plan, developed in cooperation with the Parks and Recreation Department staff, must be submitted to the City Manager or his designee for review. A site plan approved by the Director of Parks and Recreation and Parks and Recreation Advisory Board is required upon submission of each final plat or upon application for a building permit, whichever is applicable. culp.•Igrouplagen-callcouncil agendas I in-review1051215 1parks and recreationlparkland dedication ordinancell chapter 9 amendment parkland rev 1017 05.doc 1216105 ORDINANCE NO. Page 6 b. Within twelve (12) months from the date of said submission or application the landowner shall submit detailed plans and specifications in compliance with the site plan to the City Manager or his designee for review and approval. C. All plans and specifications shall meet or exceed the Manual of Neip-hborhood Park Imn_ rovement Standards in effect at the time of the submission. d. If the improvements are constructed on land that has already been dedicated to and/or is owned by the City, then the Developer must post Payment and Performance Bonds to guarantee the payment to subcontractors and suppliers and to guarantee Developer completes the work in accordance with the approved plans, specifications, ordinances, other applicable laws and that City has issued a Certificate of Completion for the improvements. C. The construction of all improvements must be completed within two (2) years from the date of the approval of the plans and specifications. A final, one-time extension of twelve (12) months may be granted by the Administrator upon demonstration that said improvements are at least fifty percent (50%) constructed. f. Completion and Acceptance — Park development will be considered complete and a Certificate of Completion will be issued after the following requirements are met: i. Improvements have been constructed in accordance with the Approved Plans. ii. All parkland upon which the improvements have been constructed has been dedicated as required under this ordinance. iii. All manufacturer's warranties have been provided for any equipment. g. Upon issuance of a Certificate of Completion, Developer warrants the improvements for a period of one (1) year as per the requirements in the Manual of Neiiahborhood Park Improvements Standards.. h. The developer shall be liable for any costs required to complete park development if: culp:lgroupWgen-cabcouncil agendas Vn-reviewW512151parks and recreation 1parkland dedication ordinancell chapter 9 amendment parkland rev 10 17 05.doc 1216105 ORDINANCE NO. Page 7 Developer fails to complete the improvements in accordance with the Approved Plans. ii. Developer fails to complete any warranty work. 5. Reimbursement for City Acquired Parkland The City may from time to time acquire land for parks in or near an area of actual or potential development. If the City does acquire park land in a park zone, the City may require subsequent parkland dedications for that zone to be in Fee -in Lieu -of -Land only. This will be to reimburse the City for the cost(s) of acquisition. Once the City has been reimbursed entirely for all such parkland within a park zone, this Section shall cease to apply. 10-C Prior Dedication or Absence of Prior Dedication If a dedication requirement arose prior to enactment of this Section 10, that dedication requirement shall be controlled by the ordinance in effect at the time such obligation arose, except that additional dedication shall be required if the actual density of structures constructed upon property is greater than the former assumed density. Additional dedication shall be required only for the increase in density and shall be based upon the ratio set forth in Section 10.B. (Credit shall be given for land dedicated or fees paid pursuant to prior parkland Ordinance Nos. 690, 983 or 2546.) 10-D Comprehensive Plan Considerations The Recreation, Park and Open Space Master Plan is intended to provide the College Station Parks and Recreation Advisory Board with a guide upon which to base its recommendations. Because of the need to consider specific characteristics in the site selection process, the park locations indicated on the Plan are general. The actual locations, sizes, and number of parks will be determined when development occurs. The Plan will also be used to locate desirable park sites before development occurs, and those sites may be acquired by the City or received as donations. Park Zones are established by the City's Comprehensive Plan, in the Park and Open Space element and are configured to indicate service areas for neighborhood parks. Zone boundaries are established that follow key topographic features such as major thoroughfares, streams, and city limit lines. 10-E Special Fund; Right to Refund 1. All parkland fees will be deposited in a fund referenced to the park zone involved. Funds deposited into a particular park zone fund may only be expended for land or improvements in that zone. culp: Igrouplagen-callcouncil agendas lin-reviewl0512151parks and recreationlparkland dedication ordinancelI chapter 9 amendment parkland rev 1017 05.doc 1216105 ORDINANCE NO. Page 8 2. The City shall account for all fees -in -lieu -of land paid under this Section with reference to the individual plat(s) involved. Any fees paid for such purposes must be expended by the City within five (5) years from the date received by the City for acquisition and/or development of a neighborhood park as defined herein. Such funds shall be considered to be spent on a first -in, first -out basis. If not so expended, the landowners of the property on the expiration of such period shall be entitled to a prorated refund of such sum, computed on a square footage of area basis. The owners of such property must request such refund within one (1) year of entitlement, in writing, or such right shall be barred. 10-F Parkland Guidelines and Requirements Parks should be easy to access and open to public view so as to benefit area development, enhance the visual character of the city, protect public safety and minimize conflict with adjacent land uses. The following guidelines and requirements shall be used in designing parks and adjacent development. 1. Any land dedicated to the city under this section must be suitable for park and recreation uses. The dedication shall be free and clear of any and all liens and encumbrances that interfere with its use for park purposes. The City Manager or his designee shall determine whether any encumbrances interfere with park use. Minerals may be reserved from the conveyance provided that there is a complete waiver of the surface use by all mineral owners and lessees. A current title report must be provided with the land dedication. The property owner shall pay all taxes or assessments owed on the property up to the date of acceptance of the dedication by the City. A tax certificate from the Brazos County Tax Assessor shall be submitted with the dedication or plat. 2. Consideration will be given to land that is in the floodplain or may be considered "floodable" even though not in a federally regulated floodplain as long as, due to its elevation, it is suitable for park improvements. Sites should not be severely sloping or have unusual topography which would render the land unusable for organized recreational activities. 3. Land in floodplains or designated greenways will be considered on a two for one basis. Two acres of floodplain or greenway will be equal to one acre of parkland 4. Where feasible, park sites should be located adjacent to greenways and/or schools in order to encourage both shared facilities and the potential co -development of new sites. culp: lgrouplagen-cahcouncil agendaslin-revieM0512151parks and recreation 1parkland dedication ordinancell chapter 9 amendment parkland rev 1017 05.doc 1216105 ORDINANCE NO. Page 9 5. Neighborhood park sites should be adjacent to residential areas in a manner that serves the greatest number of users and should be located so that users are not required to cross arterial roadways to access them. 6. Sites should have existing trees or other scenic elements. 7. Detention / retention areas will not be accepted as part of the required dedication, but may be accepted in addition to the required dedication. If accepted as part of the park, the detention / retention area design must be approved by the City Manager or his designee and must meet specific parks specifications in the Manual of Neighborhood Park Improvements Standards. 8. Where park sites are adjacent to Greenways, Schools existing or proposed subdivisions, access ways may be required to facilitate public access to provide public access to parks. 9. It is desirable that fifty percent (50%) of the perimeter of a park should abut a public street. 10-G Consideration and Approval Any proposal considered by the Planning and Zoning Commission under this Section shall have been reviewed by the Parks and Recreation Advisory Board or the City Manager or his designee as provided herein, and a recommendation given to the Commission. The Commission may make a decision contrary to the recommendation by a majority vote. 10-H Review of Land Dedication Requirements and Dedication and Development Fee The City shall review the Fees established and amount of land dedication required at least once every three (3) years. The City shall take into account inflation as it affects land acquisition and park development costs as well as the City's targeted level of service for parkland per one thousand population. Fees are authorized to be set by resolution of the City Council. 10-I Warranty Required All materials and equipment provided to the City shall be new unless otherwise approved in advance by the City Manager or his designee and that all work will be of good quality, free from faults and defects, and in conformance with the designs, plans, specifications, and drawings, and recognized industry standards. This warranty, any other warranties express or implied, and any other consumer rights, shall inure to the benefit of the City only and are not made for the benefit of any party other than the City. culp: Igrouplagen-cahcouncil agendaslin-revieM0512151parks and recreation 1parkland dedication ordinancell chapter 9 amendment parkland rev 1017 05.doc 1216105 ORDINANCE NO. Page 10 All work not conforming to these requirements, including but not limited to unapproved substitutions, may be considered defective. This warranty is in addition to any rights or warranties expressed or implied by law. Where more than a one (1) year warranty is specified in the applicable plans, specifications, or submittals for individual products, work, or materials, the longer warranty shall govern. This warranty obligation shall be covered by any performance or payment bonds tendered in compliance with this Ordinance. Defective Work Discovered During Warranty Period. If any of the work is found or determined to be either defective, including obvious defects, or otherwise not in accordance with this ordinance, the designs, plans, drawings or specifications within one (1) year after the date of the issuance of a certificate of Final Completion of the work or a designated portion thereof, whichever is longer, or within one (1) year after acceptance by the City of designated equipment, or within such longer period of time as may be prescribed by law or by the terms of any applicable special warranty required by this ordinance, Developer shall promptly correct the defective work at no cost to the City. During the applicable warranty period and after receipt of written notice from the City to begin corrective work, Developer shall promptly begin the corrective work. The obligation to correct any defective work shall be enforceable under this code of ordinances. The guarantee to correct the defective work shall not constitute the exclusive remedy of the City, nor shall other remedies be limited to the terms of either the warranty or the guarantee. If within twenty (20) calendar days after the City has notified Developer of a defect, failure, or abnormality in the work, Developer has not started to make the necessary corrections or adjustments, the City is hereby authorized to make the corrections or adjustments, or to order the work to be done by a third party. The cost of the work shall be paid by Developer. The cost of all materials, parts, labor, transportation, supervision, special instruments, and supplies required for the replacement or repair of parts and for correction of defects shall be paid by Developer, its contractors, or subcontractors or by the surety. The guarantee shall be extended to cover all repairs and replacements furnished, and the term of the guarantee for each repair or replacement shall be one (1) year after the installation or completion. The one (1) year warranty shall cover all work, equipment, and materials that are part of the improvements made under this section of the ordinance." culp:lgrouplagen-callcouncil agendas lin-revieW0512151parks and recreation 1parkland dedication ordinancelI chapter 9 amendment parkland rev 1017 05.doc 1216105 (*tl"" Parks & Recreation Advisory Board Goals &Objectives CITY OF COLLEGE STATION FY 2005 -06 (Not Prioritized) 1. update the Recreation, Park; and'CpnSpaceMen Revise and update the current plan which was approved in 2002. ❑ Present revised plan to Parks & Recreation Advisory Board for approval. Present the revised plan to City Council for approval. r7i 4/A4Cry� E.J Crompton Park N (Park Zone 7) Fit]Complete construction of Phase I Construction complete November 11, 2005 Conduct dedication ceremony N spring 2006 ❑ Complete design review and approval for Phase II project Edelweiss Gartens N (Park Zone 10) Conduct public hearings for proposed park improvements ❑ Complete design review and approval of conceptual plan for Edelweiss Gartens In design phase. Southwest Park Site ,.► (Park Zone 6) ❑ Conduct public hearings for proposed park improvements Complete design review and approval of conceptual plan for Southwest Park University Park ,.► (Park Zone 2) Conduct public hearings for proposed park improvements Complete design review and approval of conceptual plan for University Park Southern Oaks Park N (Park Zone 10) Neighborhood celebration/dedication of park Review park master plan for future improvements Approved by Parks & Recreation Advisory Board: November 8, 2005 j Updated: December 6, 2005 Steeplechase Park (Zone 10) F—IConstru'ction of Steeplechase Park. Bid awarded contract pending. Completion expected in 2006. Dedication of Steeplechase Park. 3. 'Veterans- Park and'Aihiet c CoM A`e (P�irks & i:eisure, Strategy 2) Veterans Day Ceremony November 11, 2005 ❑W Complete Phase II design plans Plans complete. Construction process Bid process expected to take place in January 2006. Conduct groundbreaking ceremony 4. Continued interaction'wttn other City Boards (Panes(WLeisure, Strategy 2)' Appoint Subcommittees for Trails, Trees, and Park Land Dedication Ordinance Report from Trails Subcommittee Report from Trees Subcommittee Report from Park Land Dedication Ordinance Subcommittee First report on December 13, 2005. Report from PARD/P&Z Subcommittee Report regarding status of Lincoln Center Advisory Committee Report regarding status of the Conference Center Advisory Committee Report from Senior Advisory Committee Report presented at November 8, 2005 regular meeting of the Parks & Recreation Advisory Board. Joint meeting/report to City Council S. Park: .and Dedication Ordlinance' ate '(Pt ning &.Development,''Strategy i) Presentation of revisions and approval by City Council Board approved revisions at joint meeting with Planning & Zoning August 18, 2005. Final review pending. Revise and make recommendations regarding dedication fees and land requirements. 6. Urban Forest ManagementPian (Parks R Leisure,fStrategy,;1 . ❑ Review approved Urban Forest Master Plan with Parks and Recreation Advisory Board. 2 Develop recommendations for implementation Present recommendations to City Council and seek direction. 7. Capital improvement Pcec #rrsih (Parks I.enure,-strategy 2 Determine use for old buildings at Lincoln Center Funds requested for testing services. Funding not approved. Review report regarding potential park improvements and renovations Identify potential new CIP projects for next bond election Review and update Veterans Park Development Plan for future phases. Install Life Trail fitness equipment in Central Park 9. Park Maintenance Standards Review and- Direction; (Parlks' & 'Leisure, Strategy I) ❑ Review quarterly standards reports from staff Develop recommendations based upon findings ❑ Present recommendations to City Council 10. Support NRPA Accroditatlon Process , Present accreditation program to Board Develop recommendations for implementation Submit application to NRPA Identify potential partners and agencies 3 Determine date, location, and agenda Conduct community ideas exchange meeting 12. Support.Greenvvays Piro.g�ram Par cs �c 1:e`rsure, Stra'egy #Z) Develop recommendations for acquisition process for greenways Review and assist with update of Greenways Master Plan Determine role of Parks and Recreation Department in greenways Determine which department would best serve the position of Greenways Coordinator Develop recommendations for trails and open space 13. -City Center Project Support. ❑ Develop recommendations for Parks and Recreation office requirements ❑ Develop recommendations for future Community Center facility Develop recommendations for Senior Center facility 14. Conduct a Waterpark Feasibiii* Siudy, Determine scope of feasibility ❑ Request funding for study and related costs 15. Identify Neighborhood GNroups For Parts Collaboration, Projects ❑ Develop ideas for neighborhood beautification projects Develop plan for encouraging citizen gatherings in neighborhood parks Item Complete Pending/On Hold 4 Parks & Recreation Department Goals & Objectives FY2006 (Not Prioritized) fw DRAFT N ■ Continuation of Staff Development ■ Leisure Programs ■ Cooperative Efforts ■ Park Maintenance Standards ■ Implementation of City Council Strategic Issues ■ Technology Services ■ Implementation of the CZP Program Continuation of Staff Development Attend Supervisory Academy Graduation: Attend Emergency Management Academy Attend Arbor Master Training 2006 Forestry crew members to attend in Irving the first week of December 2005 0 Attend the 2005, 12th Annual Southeast Texas Grounds Maintenance Conference Twelve Parks Operations and Forestry crew members attended the conference the week of October 20, 2005 Coordinate prepare for and attend TRAPS Regional Workshop Scheduled for February 9, 2006 in College Station Attend 2005/2006 Texas Turfgrass Conference First conference in December; second during the summer ❑ Attend 2006 NRPA Conference ❑ Attend 2006 Trends in Recreational Facilities Conference ❑ Attend the 2006 College Station Leadership Institute Q Attend College Station Project Management Training Attended by Steve Beachy, Eric Ploeger, Ross Albrecht, and Peter Lamont on November 8-9, 2005 Investigate feasibility of NRPA Departmental Accreditation Cooperative Efforts Support Brazos Valley Senior Olympics Investigate potential municipal golf course with City of Bryan Continue to support Grimes County Regional Park efforts Update the CSISD Joint Use Agreement CSISD collaborative efforts on future CIP projects Updated: December 6, 2005 Page 1 of 3 Review and update `Guidelines for Emergency Operations' Continue implementation of Veterans Memorial master plan Complete decoration of trains for the George Bush Library fundraiser Imolementation of Citv Council Strateaic Issues Complete cemetery land acquisition (Core Services, #1) Hire a design firm to develop new cemetery master plan Senior Committee report to Council Imolementation of the CIP Program FY 2006 CIP Projects (Parks & Leisure, #2) Ongoing. Monthly report given to Board FY 2006 Park Land Dedication Projects (Parks & Leisure, #2) Ongoing. Monthly report given to Board Develop recommendations for future CIP projects Leisure Proarams Conduct community -wide program inventory Determine role of PARD in public health issues Conduct risk assessment of PARD existing programs Develop plan for programming in the WPC Corridor Attend NRPA Health Conference in Farmers Branch on February 23, 2006 Park Maintenance Standards Continued implementation of Park Maintenance Standards Develop and implement WPC Corridor maintenance and operations program Review and update plans for Parks Operations and Forestry redistricting, community -wide operations, and grounds maintenance Updated: December 6, 2005 Page 2 of 3 Technoloov Services Implement RecWare on-line registration New city telephone system operations Item Complete Pending/On Hold Updated: December 6, 2005 Page 3 of 3 STRATEGIC PLANS IMPLEMENTATION CALENDAR OCTOBER 2005 - DECEMBER 2005 Online/ Phone Testing Needs Assessment Final Report to Board & Report to Council MOVED ,r TO 2006 Needs ssessment Final Report Senior Report to City Council to Board MOVED TO JAN on December 15th Ongoing projects Out to Bid — MOVED TO JAN 2006 NOTE: Shaded items have been completed. VPAC II 3 Additional fields included in design Expected update through council INew Forestry Shop Lions Park Basketball Court & Cover ILemontree Bail field Lights PARKS AND RECREATION DEPARTMENT CAPITAL IMPROVEMENT & PARK LAND DEDICATION PROJECTS FY 106 December 1, 2005 Capital Improvement Projects - a -vuly nnnvi rain Basketball Court Cover Ilntergenerational Park Additions SUL (Lincoln Playground Complete (Lions Park Iron Fence In Design Pending Design Contract In Design In Design Pending Design Pete Pif0512 $175000 105 General Fund 9/05 10/05 $152,850 tion David' PK0513 $3101000 '03 Bond I 9105 10/21 $304,438.85' 1$66,570 Pete PK0533 $50,000 '05 Gen. fund, I 11/30 12/01/05 Pete PK0603 $25,000 I CDBG I 04/06 Ric PK0520 I $100,000 I '03 Bond Pete I PK0604 I $220,000 I CDBG I 04/06 Pete I PK0606 I $78,000 I General Fund I 05/06 ILincoln Center Walk Cover I Contract Ric PK0602 $45,000 CDBG Soccer field irrigation @ I I I I I Field redevelopment Southwood Park In Design Pete PK0300 $39,000 fees (Veterans Park Phase II I In Design I Ric I P0501 I $6,925,000 I '03 Bond (WPC Multipurpose Building I In Design I Ric I WP0501 I $700,000 I WPC T.I.F. lBeeCreek Playground I In Design I David I N/A I $75,000 I Replacement Fund Replacement (University Park Development I In Design I David I PK0410 I $400,000 I General Fund (Steeplechase Park I I I I I Development Pending Contract David Pk0502 $315,000 Community Dev. IW.A. Tarrow Spray Park I Out to bid I Ric I PK0503 I $245,000 I Community Dev. INorthgate Restrooms ( No status I Ric I I $300,000 I FY'05 Under Construction 0 Under Contract 0 Pending Design Contracts 3 Bids Received 0 Out to Bid / Re -Bid 1 In Design 8 Pending Land Contract I 1 On Hold 0 No Status 1 03/06 10107 5/06 08/06 03/06 I - Intergenerational Project Park / mnnl Central Park Ball field entrance Improvements I Out to bid Younqblood Memorial I Under Construction Central Park Life Trail On Hold • Raintree Improvements Concrete Walks I On Hold Windwood Im rovements Concrete Walks On Hold • Southwest Park Development I On Hold Gabbard Park Sidewalk I n., U- r ratan i rRuoyz I $9 0o0 I cone u t-unas 10116/05 10/22/105 $8,667 David I Pk0605 I I Redevelopment I 2/10/05 $30,000 Fu David PK0534 $12.502 Zone 3 Funds 12/20/05 David Pete I NA 1 Zone 4 Funds + Bo $01 $15,000'98 nd I I ' Pete I NA I $01 Zone 4 Funds I I 1 Pete/David I I I $90,000 1 Zone 6 Funds David I NA I $0 I Zone 6 Funds Pete I PK9803 $710,000 ( Zone 7 Funds I Oct. 1/05 111/04/06 I $550 360 , Pete I I I I I I I — Intergenerational Project Park Land Dedication Completed Z . y Under Construction 1 Under Contract I 0 Bids Received 0 Pending Contracts I 0 Out to Bid I 1 In Design 1 Pending Land Acquisition 0 On Hold g OMProjects/CIP/CIP & Park Land Ded Project List. doc Page 2 College Station Senior Advisory Committee Regular Meeting Monday, November 28, 2005 College Station Teen Center 1520 Rock Prairie Rd. 10:OOam MINUTES Members Present: E.E. Burns, Joyce Davis, Rick Heaney, Dorothy Hernandez, Jack Hernandez, Laura Holmes, Edgar Jones, Joe LeCour, Robert Meyer, Haskell Monroe, Raymond Reed, Colleen Risinger, Yvonne Stevens, Doreen Todd and Joanna Yeager Members Absent: Patricia Boughton and Neal Nutall Staff Present: Marci Rodgers, Senior Services Coordinator I. Call to order The meeting was called to order at 10:08 by Robert Meyer, Chairman. New members, Jack Hernandez and Joyce Davis were introduced. II. Hear visitors No visitors III. Approval of minutes from regular meeting on October 31, 2005 Joe LeCour made the motion that the minutes be approved. Ray Reed seconded the motion. The motion passed. IV. Discussion, consideration and possible action concerning report to Parks and Recreation Advisory Committee Robert Meyer gave the report and updated the committee on the presentation made to the Parks and Recreation Advisory Board on November 8, 2005. A copy of the report was distributed to the committee. Mr. Meyer reported that at the Advisory Board meeting a motion was made to commission a feasibility study to identify the costs, revenues and facilities associated with a senior center which will accommodate senior citizens and other community programs and that they would consider the status of the existing Conference Center as part of the study. In a separate motion the board approved the report presented by the Senior Advisory Committee and granted permission to present to the City Council. V. Report, discussion and possible action concerning presentation to City Council on December 15, 2005 The committee discussed the report and presentation to City Council on Thursday, December 15, 2005 at 3:OOpm at City Hall. The Committee discussed members who would address the council in support of the facility after the presentation by staff and Mr. Meyer as Chairman. Rick Heaney will speak followed by Ray Reed, Joanna Yeager and Joe LeCour. Any member may speak if they wish. Haskell Monroe made the motion that the report be approved and forwarded to City Council. Joanna Yeager seconded the motion. The motion passed. VI. Senior Services Coordinator Report (report attached) VII Next meeting and agenda items: Monday, December 19, 2005 • Appoint sub -committee to establish goals for 2006 VIII. Adjourn The Committee adjourned at 11:20am Senior Services Coordinator Report November 2005 Goal Setting Sub -committee — Members interested in serving on this committee are needed to establish goals for 2006. Classes for Spring 2006 Xtra Education Brochure We are currently scheduling classes for the Spring Brochure for seniors. An and/or instructors will be greatly appreciated. y suggestions December 2-January 2 Christmas in the Park Enjoy free cookies, hot chocolate, hayrides, entertainment and visits with Santa at College Station Central Park, 1000 Krenek Tap Road. The lights will be on nightly from 6:00pm 11:00pm. December 6 - Computer Classes offered for seniors Classes will be offered for seniors on Computer User Tips and Internet and Email. Classes meet twice a week for a cost of $30.00. Registration takes place at the College Station Parks and Recreation Department office located in Central Park (1000 Krenek Tap Road). For more information on class dates and times please contact College Station Senior Services at 764-6371. December 10 - Christmas in the Park Holiday Baking Contest Adult and Youth categories offered for cookies and Holiday Specialties (sweet and non -sweet). Prizes will be awarded. All entries must be homemade and dropped off at the College Station Parks and Recreation office located in Central Park between 10:00am and 2:00pm on Saturday, December 10th. December 14 - Computer Club for Seniors The Computer Club for Seniors meets the second Wednesday of each month at no cost to the participants from 9:00am-10:30am. The meeting will take place at the College Station Conference Center located at 1300 George Bush Drive. The speaker is Howard Eliers speaking on the methods of good photography. December 15 - Holiday Dance Please join us at the College Station Conference Center, 1300 George Bush Dr. from 7:00pm- 9:30pm for a Holiday Dance. The cost is $5.00/person. Refreshments and door prizes will be given away. Hear your favorite tunes from DJ, Tom Byer. The dance is sponsored by the College Station Parks and Recreation Department Senior Services and The Gold Medallion Club. December 15 City Council Meeting The Senior Advisory Committee is scheduled to report to the City Council on December 15th from the public input they have received regarding a future senior center for College Station. Members are encouraged to attend the meeting. Page 2 of 13 w 123 S. W.3d 469 123 S.W.3d469 (Cite as: 123 S.W.3d 469) H Briefs and Other Related Documents Court of Appeals of Texas, San Antonio. R. Robert WILLMANN, Jr., Brigid Sheridan, and Ed Minarich, Appellants, V. CITY OF SAN ANTONIO, Appellee. No. 04-02-00853-CV. Oct. 8, 2003. Rehearing Overruled Nov. 3, 2003. Municipal judges brought action against city to challenge new method city adopted to appoint municipal court judges. The 285th Judicial District Court, Bexar County, David A. Berchelmann, Jr., J., granted city's motion for partial summary judgment, and, following bench trial, the court, David Peeples, J., entered final judgment for city. Judges appealed. The Court of Appeals, Phylis J. Speedlin, J., held that: (1) as a matter of first impression, genuine issue of material fact as to whether city court committee was not merely an advisory committee but rather was a "governmental body" subject to the requirements of the Texas Open Meetings Act (TOMA), and thus whether city violated TOMA in passing ordinance, precluded summary judgment, and (2) provisions of state constitution and city charter requiring officers to perform duties of office until successor is duly qualified did not apply to judges, as they had effectively been removed from office. Reversed and remanded in part; otherwise affirmed. West Headnotes [1] Administrative Law and Procedure C=124 15Ak124 Most Cited Cases Page I A core purpose of Texas Open Meetings Act (TOMA) is to enable the public to have access to the actual decision -making process of its governmental bodies. V.T.C.A., Government Code § 551.002. [21 Administrative Law and Procedure C=124 15Ak124 Most Cited Cases The provisions of Texas Open Meetings Act (TOMA) are mandatory and are to be liberally construed in favor of open government. V.T.C.A., Government Code § 551.002. 131 Courts C-89 106k89 Most Cited Cases Texas Attorney General's opinions, although not binding on an appellate court, are considered persuasive authority. [41 Judgment C;-181(15.1) 228k 18 ] (15.1) Most Cited Cases Genuine issue of material fact as to whether city court committee was a "governmental body" under the Texas Open Meetings Act (TOMA), and thus whether city council violated TOMA in passing recommended ordinance regarding appointment of municipal judges, precluded summary judgment for city in action by judges to challenge ordinance. V.T.C.A., Government Code § 551.001(3)(D). 151 Administrative Law and Procedure �124 15Akl24 Most Cited Cases A governmental body does not always insulate itself from Texas Open Meetings Act's (TOMA's) application simply because less than a quorum of the parent body is present. V.T.C.A., Government Code § 551.001(3)(D). [61 Administrative Law and Procedure 4D-124 15Ak124 Most Cited Cases A committee appointed by a governmental body constituting less than a quorum of its members may be subject to Texas Open Meetings Act (TOMA) © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://print.westlaw.comldelivery.html?dest=atp&format=HTMLE&dataid=BO05580000O... 9/20/2005 rage s or i s 123 S.W.3d 469 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) because it falls either within a definition of the term governmental body or as a subcommittee of a governmental body. V.T.C.A., Government Code § 551.00](4). ]7] Administrative Law and Procedure Czz�124 15Ak124 Most Cited Cases Texas Open Meetings Act (TOMA) definition of a governmental body generally comprehends an entity with the power to supervise or control public business. V.T.C.A., Government Code § 551.001(3)(D). 181 Judges C�-7 2270 Most Cited Cases Provisions of state constitution and city charter requiring officers to perform duties of office until successor is appointed and duly qualified did not apply to invalidate new city ordinance regarding appointment of judges, as ordinance effectively removed judges from office. Vernon's Ann.Texas Const. Art. 16, § 17. 19] States C=51 360k5l Most Cited Cases Even when an officer of the state resigns, under the constitution he or she is held over in the performance of their duties until a successor is elected or appointed and has been qualified. Vernon's Ann.Texas Const. Art. 16, § 17. 1101 Officers and Public Employees C-54 283k54 Most Cited Cases Holdover provision of the state constitution requiring officers to perform duties of their offices until successors are duly qualified becomes operative only after the officer's term has expired. Vernon's Ann.Texas Const. Art. 16, § 17. 1111 Officers and Public Employees C-71.5 283k71.5 Most Cited Cases (Formerly 283k54) One who has been removed from office within the state does not have right to holdover under state constitution until successor is duly qualified. Vernon's Ann.Texas Const. Art. 16, § 17. *470 From the 285th Judicial District Court, Bexar County, Texas, Trial Court No. 1999-CI-04626; Page 2 David Peeples, Judge Presiding. [FN 1 ] FN1. The Honorable David A. Berchelmann, Jr., granted the order on the City's motion for partial summary judgment which appellants also appeal. Harry A. Nass, Jr., James M. Parker, San Antonio, for appellants. John E. Clark, Goode Casseb Jones Riklin Choate & Watson, P.C., Michael R. Hedges, Hedges & Associates, P.C., San Antonio, for appellee. Sitting: ALMA L. LOPEZ, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice. OPINION Opinion by PHYLIS J. SPEEDLIN, Justice. Robert Willmann, Jr., Brigid Sheridan, and Ed Minarich (collectively "appellants"), challenge the method used by the City of San Antonio ("the City") in appointing municipal court judges. Appellants contend on appeal that the trial court erred in granting the City's no -evidence motion for partial summary judgment. Appellants also challenge the trial court's judgment that Ordinance No. 86503 does not violate Article 16, section 17 of the Texas Constitution. We agree with the trial court that the ordinance does not violate the Texas Constitution; however, we find that appellants raised a genuine issue of material fact with regard to whether the City Council violated the Texas Open Meetings Act ("TOMA") in passing Ordinance No. 86503 (the "Ordinance") relating to the appointment and reappointment of municipal court judges in August 1997. Accordingly, we reverse the trial court's order on that claim and remand for further proceedings. We, however, affirm the trial court's judgment as to appellants' state constitutional claim. *471 BACKGROUND The essential facts are undisputed by the parties. The City Council of San Antonio consists of eleven © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://print.westlaw.con-i/delivery.html?dest=atp&format=I ITMLE&dataid=BO055800000... 9/20/2005 123 S. W.3d 469 123 S.W.3d 469 (Cite as: 123 S. W,3d 469) members --ten council Robert Willmann was first members and one mayor. R. municipal court printed as a part-time Sheridan Judge on was July 5, 1990. Brigid first appointed as a municipal court judge on Decemberfull-time 19, 1991. Ed Minarich was first appointed as municipal court judge on December a 21, tune Pursuant to an ordinance passed and a 1993. August 31, 1995 approved on to their p 'appellants were each reappointed ositions for a subsequent two-year term beginning on September 1, 1995. In 1997, consistent with prior practice, the Ci Council appointed five of its members toty the Municipal omprise Court Committee c ("the Committee"). The Committee was chaired by Councilman Roger Flores, It. The Committee met on at least six occasions in July and August 1997 to review and discuss applicants for appointment and reappointment as municipal court judges. The meetings were attended by the presiding municipal court judge at the time, Judge Stella Ortiz Kyle. Judge Kyle took notes at the Committee meetings. The Committee meetings did not comply with the notice and recording requirements of TOMA. In subsequent interdepartmental correspondence, the Committee advised the Mayor and City Council of the names of individuals the Committee recommended for appointment and reappointment as municipal court judges. Specifically, the Committee recommended three new full-time judges and the reappointment of eight full-time and four part-time judges. All the Committee members agreed with the individuals recommended for reappointment. Councilman Jeff Webster, however, did not sign in support of the new appointments. In its correspondence, the Committee requested the City Council's concurrence with its selection of candidates by ordinance at an open meeting to be held on August 28, 1997. Prior to the City Council meeting, by letter dated August 22, 1997, Councilman Flores informed appellants that the Committee had not recommended their reappointment, thanked them for their years of service, and wished them well in the future. According to the deposition testimony of Page 4 of 13 Page 3 Councilman Flores, a copy of the interde a correspondence and a draft of p rtmental were given to each City Ordinance No. 86503 Prior to the Council member a few days draft ordinance eincludedofthe full City Council. The Com individuals the the names of the me misattee had recommended for appointment and reappointment in the Committee's interdepartmental correspondence. was placed on the Ci ,The ordinance h The agenda for a meeting to be held on August 28, 19 tape recording from 97. [FN2] The the City Council meeting on that date reflects that only the three new individuals recommended for full-time positions were discussed in depth. Councilman Ed Garza remarked that the Committee had assessed more than twenty applicants and had narrowed the field to seven. Councilman *472 Webster acknowledged that as a Committee member he did not support the new appointees because he had reservations. He also stated that some changes were made with the current judges serving on municipal court and called it a "difficult situation." Councihnan Flores reminded the City Council that they needed eight votes to pass the ordinance as an emergency vote. After this discussion, Ordinance No. 86503 was Passed and approved by a vote of nine in favor and one against. [FN3] Under this ordinance, the appointments and reappointments were to run for a two-year term beginning September 1, 1997 and ending August 31, 1999. The ordinance provided that all persons presently holding an appointed position as judge but who were not listed in the ordinance would not be reappointed to their office. Appellants were not listed in the ordinance. FN2. Ordinance No. 86503 contains the date of August 27, 1997. The summary judgment evidence included the agenda for a City Council meeting held on August 28, 1997. Item 40 of that agenda reflects that the City Council would be considering an ordinance appointing three new full-time municipal court judges, and reappointing eight full-time municipal court judges and four part-time municipal court judges. Additionally, the voting sheet reflecting each councilman's vote on Ordinance No. 86503 is dated August 28, 1997. Thus, it Q 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://print.westlaw.comldelivery.htm l?dest=atp&format=HTMLE&dataid=B0055800000... 9/20/2005 rage :) or t 3 123 S.W.3d 469 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) would appear that the ordinance was actually passed and approved on August 28, 1997. FN3. One member of City Council was absent for the vote. Councilman Webster voted against passing the ordinance. Appellants sued the City, alleging that Ordinance No. 86503 was void because all meetings of the Committee were in violation of Section l l of the City Charter [FN4] and TOMA. Also, appellants claimed that because Ordinance No. 86503 failed to name successors to their positions, they had not been removed from office and their successors had not been duly appointed and qualified as required by Article 16, section 17 of the Texas Constitution. The City timely answered and subsequently filed a motion for partial summary judgment, asserting there was no evidence "that [the] City did not do something that it was legally required to do as to the City municipal court committee meeting(s) or as to passing this Ordinance." Appellants responded and filed an amended original petition, alleging, among other things, that the City Council's action was a "rubber stamp" approval of the Committee's recommendations in violation of TOMA. FN4. Section 11 of the City Charter of San Antonio provides the following: All meetings of the Council shall be held at such times as may be prescribed by ordinance or resolution; but not less than one regular meeting shall be held each week, unless postponed for reasons to be spread [sic] on the minutes which shall be kept of all Council meetings. Special meetings of the Council shall be called by the City Clerk upon the written request of the Mayor, the City Manager or three members of Council. All meetings of the Council and of any committees thereof shall be in compliance with the Texas Open Meetings Act as it may be amended from time to time. SAN ANTONIO, TEX. CITY CHARTER, art. II, § 11. Page 4 The trial court granted the City's motion, ruling that "there is no evidence or law to support the Plaintiffs' allegations that the Defendant City violated the Texas Open Meetings Act." A trial was held before the court on the remaining issue of whether appellants continued to hold office pursuant to Article 16, section 17 of the Texas Constitution. The trial court entered final judgment in favor of the City. Appellants filed a timely appeal to this court. STANDARD OF REVIEW Our review of the trial court's rendition of summary judgment is de novo. Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). We look at the evidence in the light most favorable to the non-movant against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. See Gomez v. Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex.App.-San Antonio 1999, no pet.); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). A no -evidence summary judgment is improperly granted if the respondent brings forth more than a *473 scintilla of probative evidence to raise a genuine issue of material fact. Id.; see also Tex.R. Civ. P. 166a(i). Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). TEXAS OPEN MEETINGS ACT [1][2] With certain exceptions, [FN5] TOMA provides that every "regular, special, or called meeting of a governmental body shall be open to the public." Tex. Gov't Code Ann. § 551.002 (Vernon 1994). A core purpose of TOMA is to enable the public to have access to the actual decision -making process of its governmental bodies. City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex.1991); Cox Enter., Inc. v. Board of Tr. of Austin Ind. Sch. Dist., 2005 Thomson/Wcst. No Claim to Orig. U.S. Govt. Works. http://print.westlaw.comldelivery.html?dest=atp&format=HTMLE&dataid=B0055 800000... 9/20/2005 rage o ut 1 123 S.W.3d 469 123 S.W.3d469 (Cite as: 123 S.W.3d 469) 706 S.W.2d 956, 960 (Tex.1986). As such, TOMA requires "openness at every stage of a governmental body's deliberations" because the citizens of Texas are entitled to know not only what government decided but also to observe how and why every decision is enacted. See Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex.1990). The provisions of TOMA are mandatory and are to be liberally construed in favor of open government. See Toyah Ind. Sch. Dist. v. Pecos -Barstow Ind. Sch. Dist., 466 S.W.2d 377, 380 (Tex.Civ.App.-San Antonio 1971, no writ). FN5. For example, TOMA provides that a governmental body is not required to conduct an open meeting "to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee." Tex. Gov't Code Ann. § 551.074(a)(1) (Vernon 1994). The City in the instant case did not seek to invoke this exception. Appellants maintain summary judgment was improper because there was a genuine issue of material fact that the City violated TOMA in passing the challenged Ordinance. Appellants specifically point to both the actions of the five -member Committee (one less than a quorum of the entire City Council) which considered all applicants for the office of municipal court judge in closed sessions, and to the actions of the City Council which, in turn, simply "rubber-stamped" the Committee's recommendations. Appellants contend the process as a whole raises a fact question that the Ordinance was passed in violation of TOMA. In its response, the City stresses the Ordinance was clearly passed by the City Council in an open public meeting. Accordingly, there can be no evidence that the City violated TOMA. Furthermore, the City maintains the Municipal Court Committee was a proper advisory committee and not a "governmental body" subject to the requirements of TOMA. [3] At the onset, we recognize that no Texas court of appeals has directly addressed a claimed Page 5 violation of TOMA under the circumstances presented in this case. Therefore, we are faced with a matter of first impression. In conducting our analysis, we will first review relevant Texas Attorney General's opinions which, although are not binding on an appellate court, are considered persuasive. Commis Court of Titus County v. Agan, 940 S.W.2d 77, 82 (Tex.1997); City of San Antonio v. Baer, 100 S.W.3d 249, 252 (Tex.App.-San Antonio 2001, no pet.). We then will consider the relevant Texas case law. *474 A. Attorney General Opinions The Texas Board of Mental Health and Mental Retardation (the "Board"), a state -level governmental body, asked the Texas Attorney General in 1973 if it could divide its membership into several subcommittees to "more efficiently manage its affairs." Op. Tex. Att'y Gen. No. H-3 at 1 (1973). The Board proposed that various committees would meet with staff to discuss and study matters before the Board. These committee meetings would not be open to the public, and notice regarding the meetings would not be given. The committee recommendation would then be considered by the full Board at its open public meeting. Id. The question before the Attorney General was whether this proposal would violate TOMA. Id. at 2. While the proposed committees did not constitute a quorum of the full Board and therefore could not bind the Board, the Attorney General opined that "a real danger existed] that the full Board might become merely the 'rubber stamp' of one or more of its committees and thereby deprive public access to the effective decision making process." Id. at 4. Citing prior attorney general opinions, the Attorney General concluded that "a committee of Board members may not meet privately and without complying with the provisions of TOMA for the purpose of formulating recommendations to be made to the full Board. Id. at 5. In a later opinion, the Attorney General stated opinion H-3 was based, in part, on the concern that "if the public were excluded from such committee meetings, it would be deprived of access to the 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://print.westlaw.comldelivery.html?dest—atp&format=HTMLE&dataid—B 005 5 800000... 9/20/2005 rage i of 1-i 123 S.W.3d 469 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) actual decision -making process and the purpose of the Act would be thwarted." Op. Tex. Att'y Gen. No. H-238 at 3 (1974). The Attorney General further reiterated that TOMA applies to the deliberations of committees into which a governmental entity has divided itself because they are an important part of the entity's decision -making process. See id. According to the Attorney General, TOMA does not contemplate pro forma approval by governmental bodies of matters already privately determined by its members sitting in closed committee meetings. Id.; see also Op. Tex. Att'y Gen. No. 96-116 at 4 (1996) (stating a committee constituting less than a quorum may be subject to TOMA where the governmental body is likely to simply rubber stamp the committee's recommendation). On this basis, the Attorney General opined that the standing committees of a hospital district, when composed of members of the governing board, must ,comply with notice and open meeting requirements of TOMA. Op. Tex. Att'y Gen. No. H-238 at 4 (1974); see also Op. Tex. Att'y Gen. JM-1072 at 3-4 (1989) (committees compromised of one or more members of the board of trustees were subject to TOMA if they performed functions regarding matters affecting the school district). In Opinion H-994, the Attorney General examined both the committee's stated purpose and actual practices to determine whether a committee appointed by the chairman of the University of Texas System Board of Regents was subject to TOMA. See Op. Tex. Att'y Gen. No. H-994 at 1 (1977). In its analysis, the Attorney General noted that TOMA does apply if the committee meets to discuss public business or policy; but does not apply to a purely advisory body which has no power to supervise or control public business. Id. at 2. The Attorney General then examined the resolutions that defined the committee's powers and the committee's actual practices to determine if additional authority was exercised as a matter of practice. Id. In addition, the Attorney General considered the committee's overall membership composed of three Regents and twelve other individuals outside the governmental body. According to the Attorney *475 General, the Page 6 presence of individuals not related to the parent governmental body diminished the danger of rubber stamping. Id. We think that this danger is diminished in the present case by the appointment of twelve other members who might represent different viewpoints within the university system. We strongly caution, however, that should the council actually function as a committee of the Board or as something more than an advisory body, and in fact supervise or control public business or policy, it will have to comply with the Act's provisions on notice and public meetings. Id. at 2-3. This same analysis is repeated in opinion JC-0060 in which the Attorney General opined that the initial work of a committee containing two members of a commissioners court and seven other individuals, which evaluated architectural firm applicants, did not fall under TOMA because of its advisory nature. See Op. Tex. Att'y Gen. No. JC-0060 at 3 (1999). The Evaluation Committee's mission is to perform evaluations of architectural firm applicants and submit a recommendation in the form of a ranking of the firms to the commissioners court. As you indicate, the [c]ommittee's recommendation is not binding in any way on the court. Even though two members of the commissioners court are members of the [c]ommittee, the presence of seven other individuals attests to the likelihood that other viewpoints will be considered. In these circumstances, the commissioners court is less likely to "rubber-stamp" the [c]ommittee's choice. On the contrary, ... even if the [c]ommittee ranked one firm in last place, the court could nevertheless award that firm the contract. The [c]ommittee's initial work thus appears to be that of an advisory body, without power to supervise or control public business. Id. at 3. In that same opinion, however, other work done by the committee to negotiate a contract with the selected firm was determined to be more than advisory. Id. at 3. Unlike the ranking of architectural firms in the initial stage of the process, from which the commissioners court is at liberty to select the firm © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://print.westlaw.corn/delivery.html?dest=atp&format=HTMLE&dataid=B0055800000... 9/20/2005 Page 8 of 13 123 S.W.3.d 469 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) that the Evaluation Committee ranked in last place, the result of the negotiating process leaves no room for the commissioner's input: the court must either adopt or reject the contract negotiated by the Evaluation Committee. Id. at 4. The Attorney General further reasoned that if the two commissioner court members that served on the committee approved the terms negotiated on a contract, only one more vote would be needed from the remaining commissioner court members to adopt the privately negotiated terms. Id. at 3. Accordingly, the Attorney General held the Evaluation Committee, under the facts described, was subject to TOMA. Id. at 5. Consistent with these opinions, the Attorney General devotes a section to "Committees and Subcommittees of Governmental Bodies" in the Open Meetings Handbook published in 2002. JOHN CORNYN, OFFICE OF THE ATTORNEY GENERAL -STATE OF TEXAS, OPEN MEETINGS HANDBOOK 14 (2002). In that publication, the Attorney General begins with the general proposition that members of a governmental body meeting in numbers less than a quorum are not subject to TOMA. He cautions, however, that there may be exceptions to that general rule including the following: A committee or subcommittee appointed by a governmental body and *476 granted authority to supervise or control public business or public policy may itself fall within the definition of "governmental body." (Citations omitted). Even a committee or subcommittee without formal control over public business or public policy may be deemed a governmental body subject to the act if its decisions are in fact "rubber stamped" by the parent body. (Citations omitted). Id. We next consider the relevant Texas case law. B. Texas Cases In Hitt v. Mabry, 687 S.W.2d 791, 796 (Tex.Civ.App.-San Antonio 1985, no writ), this court modified certain aspects of an injunction, but Page 7 maintained a permanent injunction against the Board of Trustees of the San Antonio Independent School District ("SAISD") enjoining them from arriving at decisions involving public business or public policy affecting the SAISD by way of private informal meetings or telephone polls of board members. Mabry sought to prevent the mailing of a letter to all parents residing in the SAISD advising them of their voting rights and stating the message was a service of the Board of Trustees. Id. at 793. The letter was drafted by the board president after he had conducted an informal telephone poll of the board members. Id. Justice Cadena, in his dissent, disagreed with the majority's decision on the basis that the circumstances presented did not give rise to a violation of TOMA. Plaintiffs alleged that the use of the telephone polls was a conspiracy to circumvent the provisions of the Open Meetings Act.... As applicable to this case, the "governmental body" which is required to meet publicly is the Board of Trustees, and the requirements that meetings of that body be public applies only when a quorum is present, since in the absence of a quorum there is no "meeting." Notice of deliberations is required only where the deliberation involves a quorum. Id. at 798 (Cadena, J., dissenting). Essentially, Justice Cadena expressed the view that a violation of TOMA did not occur unless a quorum of the governmental body was physically present in one place. See id. Therefore, according to Justice Cadena, telephone polling did not involve a quorum and did not violate TOMA. Id. While not expressly addressed by the majority, it appears that the majority took the opposing view that the telephone polls conducted by Board members did violate TOMA. See id. at 796; see also Op. Tex. Att'y Gen. No. DM-95 at 5 (1992) (discussing Hitt). In Harris County Emergency Serv. Dist. No. I v. Harris County Emergency Corps, 999 S.W.2d 163 (Tex.App.-Houston [14th Dist.] 1999, no pet.), the court of appeals was faced with the issue of whether members of the Harris County Emergency Service District violated TOMA, and thereby could be enjoined from discussing district policy or business over the telephone with other board members. The 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://print.westlaw.com/delivery.html?dest=atp&format=HTMLE&dataid=B0055 800000... 9/20/2005 rage Y or t j 123 S.W.3d 469 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) court held that in order for there to be a violation there needed to be evidence of a "meeting" as defined under TOMA. Id. at 168. The court held that no violation occurred where the evidence reflected that less than a quorum of the district was involved in the telephone conversations. Id. at 169. The evidence also reflected that board members had merely discussed the matters they needed to put on the agenda for future meetings. Id. The evidence did not show that board members were using the telephone to avoid meeting as a quorum and thereby attempting to circumvent TOMA. Id. According to the *477 court, unlike the circumstances in Hitt, there was "no evidence that the district members were attempting to circumvent TOMA by conducting telephone polls with each other." Id. Accordingly, the court held the provision of the injunction prohibiting board members from discussing policy or business over the telephone with other board members was too broad. Id. In Finlan v. City of Dallas, 888 F.Supp. 779 (N.D.Tex.1995), the federal district court addressed whether TOMA covered an ad hoc committee of the Dallas City Council. In that case, the federal district court enjoined the Downtown Sports Development Committee from meeting in closed sessions with third parties. The committee consisted of five city council members who met with constituents for the purpose of negotiating the establishment of a new arena. Id. at 781-82. Nine council members constituted a quorum of the city council. Id. The evidence considered by the district court in enjoining the city council included the city council's own rules that provided the committees were subject to TOMA with no exception made for ad hoc committees. Id. at 784. This led the district court to conclude that the city treated the ad hoc committee as a governmental body. On this basis, the district court rejected the city's argument that the committee did not constitute a quorum of city council, noting that only three members were needed to make a quorum of the committee. Id. With five members of the committee in favor of an arena, as well as the Mayor who appointed them, only two more votes would be needed from the remaining members of city council to agree to the deal negotiated by the committee. Id. at 786. Page 8 According to the district court, the city's argument raised the concern that "a real danger exists that the full city council is merely a 'rubber stamp' of the Committee." Id. at 785. Important to the district court's decision was the fact that it did not receive a clear answer to its inquiry regarding why there was no quorum of the full city council. Id. at 786. The district court considered this circumstantial evidence that the committee was designed to circumvent TOMA. Id Finally, in Esperama Peace and Justice Ctr. v. City of San Antonio, No. SA-98-0696-OG, 2001 WL 685795, at *30 (W.D.Tex. May 15, 2001), the mayor of San Antonio met with several city council members and spoke with others on the phone in the City Manager's office regarding the city budget the night before an open city council meeting. The evidence reflected that the participants in these discussions carefully avoided the physical presence of a quorum of city council. Id. For example, on several occasions, the City Manager informed the group that there were too many people together and that they risked violating TOMA. Id. In response, one or more city council members would leave the office. Id. The discussions led to a unanimous agreement encompassed in a consensus memorandum regarding the city budget changes. Id. at *31. All council members signed the draft consensus memorandum to be considered at the open city council meeting. Id. While the members understood that the memorandum was not binding, no amendments were offered and no debate occurred at the open meeting. Id. The budget adopted essentially reflected the agreement in the consensus memorandum. Id. The City argued that no violation of TOMA occurred because a quorum was never present in the City Manager's office. Id. at *32. The district court disapproved of this argument by stating, in part, the following: *478 If a governmental body may circumvent the Act's requirements by "walking quorums" or serial meetings of less than a quorum, and then ratify at a public meeting the votes already taken in private, it would violate the spirit of the Act and would render an unreasonable result that was © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://print.westlaw.comldelivery.html?dest=atp&format=I ITMLE&dataid—BOO55800000... 9/20/2005 Page 10 of 13 123 S.W.3d 469 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) not intended by the Texas legislature. Thus, a meeting of less than a quorum is not a "meeting" within the Act when there is no intent to avoid the Act's requirements. On the other hand, the Act would apply to meetings of groups of less than a quorum where a quorum or more of a body attempted to avoid the purposes of the Act by deliberately meeting in groups less than a quorum in closed sessions to discuss andlor deliberate public business, and then rating their actions as a quorum in a subsequent public meeting. Id. at *35 (emphasis added). The district court then assessed whether the evidence established an intentional violation of TOMA. The district court considered the fact that the mayor met with council members constituting less than a quorum to reach a conclusion; the City Manager kept track of the number of council members present so as to avoid a formal quorum; the consensus reached was memorialized in a memorandum containing the signatures of each council member; and the consensus was "manifested" when adopted at an open meeting. Id. In light of this evidence, the district court concluded "a clearer manifestation of intent to reach a decision in private to avoid the technical requirements of the Act [could] hardly be imagined." Id. C. Analysis [4) Appellants argue summary judgment was improper because there was a genuine issue of material fact that the City violated TOMA in passing the challenged Ordinance. The City maintains the summary judgment was proper because it is undisputed that the attacked ordinance was passed in an open meeting by the only governmental body of the City of San Antonio, the City Council. Furthermore, the City argues the municipal court committee was not required to comply with open meeting requirements of TOMA because it was not a governmental body under the Act, but was a proper and necessary advisory committee allowed under the City Charter. In support of its arguments, the City stresses that TOMA relies heavily on defined terms, and requires Page 9 only a "meeting" of a governmental body to be open to the public. According to the City, the members of the Committee did not engage in a "meeting" as that term is defined since it is undisputed the Committee was made up of less than a quorum of the City Council. See Tex. Gov't Code Ann. § 551.00](4) (Vernon 1994) (defining "meeting" as a deliberation between a quorum of a governmental body). In essence, the City would have us find that meetings are required to be public only when a quorum is present, since in the absence of a quorum there is no "meeting." We disagree. [5][6] Contrary to the City's position, a governmental body does not always insulate itself from TOMA's application simply because less than a quorum of the parent body is present. Esperanza Peace and Justice Ctr., 2001 WL 685795, at *30; Finlan, 888 F.Supp. at 782 & 785 (N.D.Tex.1995); Hitt, 687 S.W.2d at 796; JOHN CORNYN, OFFICE OF THE ATTORNEY GENERAL -STATE OF TEXAS, OPEN MEETINGS HANDBOOK 14 (2002). A committee appointed by a governmental body constituting less than a quorum of its members may be subject to TOMA because it falls either within a definition of the term "governmental body" or as a subcommittee of a governmental body. *479See Op. Tex. Att'y Gen. No. JC-0060 at 3 (1999). Accordingly, we reject the City's strict reading of the definition of "meeting" under TOMA, because it would be contrary to our mandate to liberally construe TOMA's provisions in order to safeguard the public's interest in open government. See Acker, 790 S. W.2d at 300. Furthermore, our conclusion' is consistent with the language in section 551.143(a) which specifically prohibits members of a governmental body from knowingly conspiring to circumvent TOMA by meeting in numbers less than a quorum. "Indeed it would appear that the legislature intended expressly to reach deliberate evasions of these definitions in enacting [section 551.143(a)]." Op. Tex. Att'y Gen. No. DM-95 at 5 (1992); see Op. Tex. Att'y Gen. No. JC-0307 at 5-6 (2000). [71 The City also argues that the Municipal Court Committee is not a "governmental body" as defined 0 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://print.westlaw. comldelivery.html?dest=atp&format=HTMLE&dataid=B0055800000... 9/20/2005 rage t i of i -i 123 S.W.3d 469 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) under TOMA because it is not "a deliberative body that has rule making authority or quasi-judicial power." Tex. Gov't Code Ann. § 551.001(3)(D) (Vernon 1994). The City points to the City Charter which provides that the City Council may create boards and committees to assist it in an advisory capacity in the performance of its duties. See San Antonio, Tex. City Charter, art. V, § 49. We agree with the City that the definition of a governmental body generally comprehends an entity with the power to supervise or control public business. We also agree that the City Charter of San Antonio enables the City Council to create committees to assist it in a purely advisory capacity. [FN61 The critical issue before us, however, is whether the evidence presented at summary judgment raises a question of fact that the Committee was more than an advisory committee in actual practice and, thus, subject to the open meeting requirements of TOMA. FN6. We recognize that in Finlan, the trial court considered the fact that the City Charter of Dallas required council committee meetings to be open and that the city council's rules of procedure mandated that committee meetings must be conducted in accordance with TOMA. 888 F.Supp. at 784. Similarly, in this case, section 11 of Article II of the City Charter provides that meetings of any committees of the City Council must be in compliance with TOMA. In this case, however, we do not consider section 11 of the San Antonio City Charter to be evidence in support of appellants' position because the section was not presented as evidence for the trial court to consider. It is undisputed that the Committee was established by the City Council. According to Councilman Flores, the Committee consisted of five members because the City Council would be in violation of TOMA if it had six members. When asked in deposition why the Committee consisted of five members, Councilman Flores responded as follows: Q: Why were there only five? A: Five? Usually that's the --that was the way that the committees were set up. Because you can't Page 10 have six people. You can only have five. Otherwise it would be I guess like having a meeting of Council. Q: In other words, if they had a committee of six, under your recollection of it, it would then have to abide by the provisions of the Open Meeting[s] Statute. A: Right. Yeah. Exactly. Q: I don't mean to be putting words in your mouth. A. No. But that's right. Because you couldn't hold a meeting with six people because then that would be a violation. Exactly. Q: Unless there was a public notice and agenda and all that and everything published? *480 A. Right. Like we do for the City Council meetings. Councilman Flores's testimony regarding the composition of the Committee could be viewed one of two ways. Councilman Flores's testimony could be construed as merely his understanding of TOMA. On the other hand, his testimony could also be construed as an attempt by City Council to avoid the presence of a quorum and, therefore, avoid application of TOMA to Committee meetings. The evidence also shows the Committee was made up exclusively of city council members who met on several occasions to review the applicants for municipal court judges. Notice was not posted regarding the Committee's meetings, and tape recordings were not made. After assessing the various applicants for appointment and reappointment, the Committee compiled a list of individuals recommended for the position of municipal court judges in the form of a draft ordinance to be voted on at an open meeting of the City Council. Letters informing appellants they were not recommended for reappointment, thanking them for their years of service, and wishing them well in the future were sent out six days before the City Council's vote on Ordinance No. 86503. At the open meeting, the Committee's recommendations were approved without meaningful discussion by the City Council. The tape recording for the City Council meeting held on August 28, 1997, begins with the Mayor ordering "up and quickly" agenda item number 40, which 0 2005 Thomson/West. No Claim to Orig. T 1 S. Govt. Works. http://print.westlaw. comldelivery.html?dest=atp&format=HTMLE&dataid—B0055800000... 9/20/2005 rage 12 of 13 123 S.W.3d 469 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) was the draft of Ordinance No. 86503. There was no discussion regarding all the individuals who had applied and reapplied for appointment, the individuals who were not recommended, or the criteria the Committee used in determining its recommendations. Instead, the discussion centered on the three new individuals recommended for full-time appointments. Finally, there was evidence the City Council had consistently passed and approved the Committee's recommendations without change from July 1990 through November 1998. Arguably, the evidence suggests pro forma public approval or "rubber stamping" by the City Council of matters already determined by the Committee sitting in closed meetings which the Attorney General and Texas courts have warned can violate TOMA. See Finlan, 888 F.Supp. at 785-86; Op. Tex. Att'y Gen. No. JC-0060 at 3-5 (1999); Op. Tex. Att'y Gen. No. H-238 at 3 (1974); JOHN CORNYN, OFFICE OF THE ATTORNEY GENERAL -STATE OF TEXAS, OPEN MEETINGS HANDBOOK 14 (2002). The letters informing appellants they would not be reappointed suggest an assumption by the Committee that its decision was final and, therefore, not advisory. Further, there was no substantive discussion regarding the various applicants at the open meeting. Finally, there was a pattern of the City Council consistently passing and approving the Committee's recommendations for municipal court judges over an eight -year period. In light of our standard of review, we conclude the evidence rises to the level that would enable reasonable and fair-minded people to differ in their conclusions. Accordingly, we hold the trial court erred in granting the City's no -evidence motion for partial summary judgment. We sustain appellants' first four issues. Article 16, Section 17 of the Texas Constitution [8] Appellants also argue that the wording of Ordinance No. 86503 violates Article 16, section 17 of the Texas Constitution and section 160 of the City Charter. The parties went to trial on these claims. At trial, the parties stipulated to certain Page I 1 facts, including the following: (1) no specific*481 individuals were named as appellants' successors; (2) appellants were not removed from office for cause as provided by the Texas Government Code; (3) appellants did not give the City a notice of resignation; and (4) the City has not passed or approved an ordinance that abolished the municipal court offices held by appellants. Additionally, Ordinance No. 86503 did not specifically name appellants as being removed. Appellants contend that under these facts they remain municipal court judges as required by the Texas Constitution and the City Charter. In asserting that the trial court erred in refusing to fmd Ordinance No. 86503 violates the Texas Constitution and the City Charter, appellants appear to be challenging the trial court's conclusion of law. We review questions of law under a de novo standard of review without deference to the trial court's conclusion. See Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex.2001); State v. Heal, 917 S.W.2d 6, 9 (Tex.1996). [9][10)[11] Under Section 160 of the City Charter of San Antonio, officers are to hold over until their successors are appointed and qualified. Whenever under the provisions of this Charter any officer of the City, judge or member of any board or commission is appointed for a fixed term, such officer, judge or member shall continue to hold office until his successor is appointed and qualified. SAN ANTONIO, TEX. CITY CHARTER art. XII, § 160. The Texas Constitution states that "all officers within the State shall continue to perform the duties of their offices until their successors shall be duly qualified." TEX. CONST. art. XVI, § 17. The commentary to this section provides that this provision was placed in the Texas Constitution, in part, to "prevent public convenience from suffering because of a vacancy in the office...." TEX. CONST. art. XVI, § 17 interp. commentary (Vernon 1993); see also Plains Common Consol. Sch. Dist. No. I v. Hayhurst, 122 S.W.2d 3?.71 126 (Tex.Civ.App.-Amarillo 1938, no writ). Even where an officer resigns, under this section, he or she is held over in the performance of their duties © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://print.westlaw.comldelivery.html?dest=atp&format=HTMLE&dataid=BO05580000O... 9/20/2005 r dgtz i Jul i J 123 S.W.3d 469 123 S.W.3d 469 (Cite as: 123 S.W.3d 469) until a successor is elected or appointed and has been qualified. See Op. Tex. Att'y Gen. H-161 at 2 (1973). This holdover provision becomes operative only after the officer's term has expired. Op. Tex. Att'y Gen. JC-0293 at 3 (2000). On the other hand, the right to holdover does not reside in one who has been removed from office. See Manning v. Harlan, 122 S.W.2d 704, 707 (Tex.Civ.App.-El Paso 1938, writ dism'd). Ordinance No. 86503 effectively removed appellants from office. Because appellants were removed from office, Article 16, section 17 does not apply to the instant circumstances. The facts, as agreed to by the parties, reflect that there were the same number of judges after appellants' terms had expired as there were when appellants were in office. Therefore, no vacancy occurred in the office of municipal court judge that resulted in public inconvenience to warrant the application of Article 16, section 17 of the Texas Constitution. [FN7] FN7. By asking this court to hold that Ordinance No. 86503 violates Article 16, section 17 of Texas Constitution, appellants are asking us to hold that this provision prohibits a governmental entity from removing an officer from office. However, appellants do not cite nor can we find case law to suggest that section 17 prohibits a governmental body from removing an officer from office. Additionally, appellants argue that Ordinance No. 86503 violates Article 16, section 17 because successors were not specifically named as replacing them. While Article 16, section 17 contemplates that a successor be "duly qualified," it does not expressly state that this means successors must be specifically named. We refuse to read into this provision such a requirement. *482 Because we hold that Article 16, section 17 of the Texas Constitution does not apply to the circumstances presented, we overrule appellants' fifth and sixth issues. CONCLUSION Page 12 We hold that appellants presented sufficient evidence to raise a genuine issue of material fact on their claim that the City violated the Texas Open Meetings Act in passing and approving Ordinance No. 86503. We also hold, that the trial court did not err in concluding that Ordinance No. 86503 does not violate Article 16, section 17 of the Texas Constitution. We reverse the trial court's judgment as to appellants' claim under the Texas Open Meetings Act and remand that claim to the trial court for further proceedings consistent with this opinion. We affirm the trial court's judgment in all other respects. 123 S.W.3d 469 Briefs and Other Related Documents (Back to top) • 04-02-00853-CV (Docket) END OF DOCUMENT 0 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. (Nov. 21, 2002) http://print.westlaw.corn/delivery.htmI?dest=atp&format=HTMLE&dataid=BO055800000... 9/20/2005 Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. 816 Congress Akwnue Suite 1700 Austin, Texas 78701 (512) 472 $021 fax (512) 320-5638 w".bickerstarr.com May 27, 2005 CLIENTS AND FRIENDS OF BICK£RSTAFF, HEATH, SMILEY, POLLAN, KEVER & MCDANIEL, L.L.P.: In the past few days there have been two significant developments in Texas open meetings jurisprudence that affect all members of governmental boards in the state. During the thirty -plus years I have worked with the Open Meetings Act, including six years as chair of the Attorney General's Opinion Committee where open meetings issues were constantly presented, one of the major concerns was how much one-on-one discussion of public issues among board members was permissible before it crossed the line separating what is and is not permissible under the Act. The Attorney General and an East Texas grand jury have spoken on that question in the past two weeks. In Attorney General Opinion No. GA-326, which was issued on May 18, Attorney General Abbott determined that a county commissioner who made separate telephone calls to two other members of the commissioners court to urge them to support a particular proposal (and thus, counting himself, reached a quorum of the court) could be guilty of a criminal violation of the Act. Addressing the same issue, on May 24 an Upshur County Grand Jury indicted a school board president for conspiring to circumvent the provisions of the Act by meeting in numbers of less than a quorum. The case was brought by the Attorney General at the request of the local district attorney. The Attorney General states that the indictment stems from private conversations the board president had with several board members to gauge their support for a severance package to be offered to the superintendent. I am enclosing a copy of the opinion and the indictment for your information. Board members who discuss governmental issues outside of a posted meeting must be careful to be sure that they do not inadvertently violate the criminal provisions of the Act. Technological innovations such as e-mail, which permits us to reach every member of a group simultaneously and leaves an electronic record on the communication, raise special problems and dangers. I hope these documents will assist you to avoid those pitfalls. If you have any questions about this issue, please do not hesitate to contact me or other members of the firm. Sincerely, C bert eath� R� 0 ATTORNEY GENERAL OF TEXAS GREG ABBOTT May l 8, 2005 The Honorable Tom Maness Opinion No. GA-0326 Jefferson County Criminal District Attorney 1001 Pearl Street, 3rd Floor Re: Proper construction of Government Code Beaumont, Texas 77701-3545 section 55I.143 and whether it is unconstitutionally vague (RQ-0291-GA) Dear Mr. Maness: You ask about the proper construction of section 551.143 of the Government Code and whether it is unconstitutionally vague.' 1. Background Section 551.143, an Open Meetings Act enforcement provision, reads in relevant part: (a) A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter. (b) An offense under Subsection (a) is a misdemeanor .... TEX. GOV'T CODE ANN. § 551.143 (Vernon 2004); see also Open Meetings Act (the "OMA'), id. §§ 551.001-.146 (Vernon 2004 & Supp. 2004-05). You observe that in the past two years your office has conducted two investigations into allegations thatpublic officialswithin your jurisdiction violated section 551.143. SeeRequest Letter, supra note 1, at 1. Although the allegations did not lead to criminal prosecution, you are nonetheless concerned about the substantial disagreement among interested parties regarding the provision's correct construction and constitutionality. Id. 'Letter &omHonorable Tom Maness, Jefferson County Criminal District Attorney, to Honorable Greg Abbott, Texas Attorney General (Nov. 3, 2004) (on file with Opinion Committee, also available athttp://www.oag.sftte.tLus) [hereinafter Request Letter]. The Honorable Tom Maness - Page 2 (GA-0326) Specifically, you note that "the problem in interpretation arises in part from the definitions section of the [OMA]," which you suggest renders section 551.143 meaningless. Id. at 2; see also TEx. Gov'TCODE ANN. § 55 1.001 (Vernon Supp. 2004-05). Section 551.143 criminalizes "meeting in numbers less than a quorum for the purpose of secret deliberations." See TEx. GOv',r CODE ANN. § 551.143(a) (Vernon 2004) (emphasis added). The provision, however, does not define these terms separately for its purposes and therefore relies on section 551.001, the general OMA definitional provision, to supply the definitions. And section 551.001 defines "meeting -and "deliberation" in terms of a governmental body quorum. See Request Letter, supra note 1, at 2; TEx. Gov'T CODE ANN. § 551.001(2), (4) (Vernon Supp. 2004-05).2 Thus, you consider section 551.143 defective because on its face it would be impossible for individuals to meet or deliberate in groups less than a quorum to knowingly circumvent the Open Meetings Act. See Request Letter, supra note 1, at 2-3. '""Deliberation' means a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business." TEx. Gov'T CODE ANN. § 551.001(2) (Vernon Supp. 2004-05) (emphasis added). And "meetine' is defined as: (A) A delibcrationbctween a quorum ofa governmental body, or 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; or (B) except as otherwise provided by this subdivision, a gathering: (i) that is conducted by the governmental body or for which the governmental body is responsible; (ii) at which a quorum of members of the governmental body is present; (iii) that has been called by the governmental body; and (iv) at which the members receive information from, give information to, ask questions of, or receive questions from any third the lie including an employee of the governmental body, e public business or public policy over which the govenuumtal body has supervision or control. The term does not include the gathering of a quorum of a governmental body at a social function unrelated to the public business that is conducted by the body, or the attendance by a quorum of a governmental body at a regional, state, or national convention or workshop, if formal action is not taken and any discussion of public business is incidental to the social function, convention, or workshop. The term includes a session of a governmental body. Id. § 551.00)(4) (emphasis added). The Honorable Tom Maness - Page 3 (GA-0326) In light of its apparent circularity, you ask that we apply section 551.143 to a hypothetical situation inwhich, with therequisite culpable mental state, a county commissioner makes successive telephone calls to other members of the commissioners court to discuss public matters and to urge that the other members vote on those matters in a certain way. See id. at 3. II. Analvsis A. Proper Construction of Section 551.143 To answer your questions, we return to section 551.143 and note that a violation is dependent on proof of the presence of an actor or actors, subject to the OMA, who knowingly conspire to circumvent the act's requirements by meeting in numbers less than a quorum for the purpose of secret deliberations. See TEX. Gov'T CODE ANN. § 551.143(a) (Vernon 2004). Because it is the phrase "meeting in numbers less than a quorum for the purpose of secret deliberations" about which you express concern, we focus on its meaning. In construing a statute we are charged with determining and giving effect to the legislature's intent. See City of San Antonio v. City of Boerne, I I I S.W.3d 22, 25 (Tex. 2003). This is accomplished by establishing the "plain and common meaning of the statute's words." Id. Generally, if a statute's meaning is unambiguous, we interpret the statute according to its plain meaning. Id. Furthermore, we presume that, inter alia, a statute is constitutional and that a result feasible of execution is intended. See TEX. GOWT CODE ANN. § 311.021 (Vernon 2005). Initially, and important to this analysis, we agree with you that "meeting" in section 551.143 is not defined by the OMA's general definition of the term. See Request Letter, supra note 1, at 2; TEX. GOv'T CODE ANN. §§ 551.143(a) (Vernon 2004), 551.001(4) (Vernon Supp. 2004-05). That is, the section 551.001 definition of "meeting" as a noun does not apply here because section 551.143 employs the word as a verb. See Request Letter, supra note 1, at 2; TEX. GOV'T CODE ANN. §§ 551.143(a) (Vernon 2004), 551.001(4) (Vemon Supp. 2004-05). Thus, the phrase "meeting in numbers less than a quorum" does not present a legal dilemma because the plain meaning of "meeting" as a verb does not require a quorum.' Furthermore, we read "meeting in numbers less than a quorum" to have a particular meaning that does not render the provision circular. The OMA does not require that governmental body members be in each other's physical presence to constitute a quorum. See TEx. Gov'T CODE ANN. § 551.001(6) (Vernon Supp. 2004-05) (defining "quorum" simply as a majority of a governmental body).- As such, we construe section 551.143 to apply to members of a governmental body who gather in numbers that do not physically constitute a quorum at anyone time but who, through successive gatherings, secretly discuss apublic matter with a quorum of that body. In essence, it means "a daisy chain ofinembers the sum ofwhom 'See, e.g., THE NEW OxFORD AMEwcAN DrMNARY 1063 (2001) (defining "meet" as to "come into the presence or company of (someone) by chance or arrangement"). The Honorable Tom Maness - Page 4 (GA-0326) constitute a quorum"° that meets for secret deliberations. Under this construction, "deliberations" as used in section 551.143 is consistent with its definition in section 551.001 because "meeting in numbers less than a quorum" describes a method of forming a quorum, and a quorum formed this way may hold deliberations like any other quorum, see id. § 551.001(2). This construction is discernible from a plain reading of the provision. Moreover, because your alternative understanding of this phrase renders the provision fatally defective, and because it is contrary to the presumption that the legislature intended a result feasible of execution, we believe section 551.143's proper construction is the one we describe here. And, also important, our construction comports with past opinions from this office and judicial decisions that have addressed similar issues. As a general matter, Texas civil courts, in construing the OMA, rely on the OMA's core purpose, which is to guarantee access to the actual decision -making process of governmental bodies. See Esperanza Peace & Justice Or. v. City of San Antonio, 316 F. Supp. 2d 433, 472 (W.D. Tex. 2001). As such, the civil courts construe the OMA's provisions liberally in favor of open government. See id. Furthermore, "(w]hen a majority of a public decisionmaking body is considering a pending issue, there can be no `informal' discussion. There is either formal consideration of a matter in compliance with the Open Meetings Act or an illegal meeting." Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990). With these as its guiding principles, the federal district court in Esperanza found that in a civil context "meeting in numbers less than a quorum for the purpose of secret deliberations" refers to a quorum or more of a body that attempts to avoid the OMA's purposes by deliberately meeting in numbers physically less than a quorum in closed sessions to discuss public business and then ratifying its actions in a physical gathering of the quorum in a subsequent sham public meeting. See Esperanza, 316 F. Supp. 2d at 473, 476; accord Willmann v City of San Antonio,123 S.W.3d 469, 478 (Tex. App.—San Antonio 2003, pet. denied); Tex. Att'y Gen. Op. No. JC-0307 (2000) at 8; Tex. Att'y Gen. LO-95-055, at 4; Tex. Att'y Gen. Op. No. DM-95 (1992) at 4; see generally Hitt V. Mabry, 687 S.W.2d 791, 794 (Tex. App.—San Antonio 1985, no writ). In Esperanza, San Antonio city council members passed around a consensus mernorandurn on the city's budget, which a number of council members equaling at least a quorum signed individually, and then adopted the budget reflected in the memorandum at an open meeting without discussing the memorandum's contents. The court concluded that the council's actions concerning the budget were void because they constituted a meeting held in violation ofthe OMA. See Esperanza, 316 F. Supp. 2d at 478; see also TEx. Gov'T CODE ANN. § 551.141 (Vernon 2004) ("An action taken by a governmental body in violation of this chapter is voidable."). In direct consideration of section 551.143, this office has also relied on a definition similar to the one outlined here to conclude that a governmental body's actions in avoiding the technical 'Brief from Joseph R. LarsM Attorney at Law, Ogden, Gibson, White, Broocks & Longoria, L.L.P., to Once of the Attorney General at 2 (Jan. 24, 2005) (filed on behalf of the Freedom of Information Foundation) (on file with Opinion Conunittee). The Honorable Tom Maness - Page 5 (GA-0326) definitions of "meeting" and "deliberation" were nonetheless meetings under the OMA. See generally Tex. Att'y Gen. Op. Nos. JC-0307 (2000), DM-95 (1992); Tex. Att'y Gen. LO-95-055. In Attorney General Opinion DM-95, this office considered whether members of a governmental body would violate section 551.143's statutory predecessor if they, without ever creating a physical quorum, signed a Ietter on matters relevant to public business and then did not meet to take action on the matters in open session. The opinion concluded that "the physical presence of a quorum in a single place at the same time is not always necessary for violation of (the OMA] to occur. Avoiding the technical definition of `meeting' or `deliberation' is not, therefore, a foolproof insulator from the effect of the act." Tex. Att'y Gen. Op. No. DM-95 (1992) at 5. Moreover, "it would appear the legislature intended expressly to reach deliberate evasions of these definitions in enacting section 4(b) [section 551.143' s statutory predecessor] ofthe act." Id.; accord Tex. Att'y Gen. LO-95-055, at 3-4. In Attorney General Opinion JC-0307, this office again considered section 551.143 and its proper construction. In that opinion, this office was asked whether a third party could violate section 551.143 by enticing members of a body to meet in numbers of less than a quorum for purposes of circumventing the OMA. Relevant to your question, this office, before considering the ultimate question in that opinion, considered whether a governmental body member could violate section 551.143 by enlisting a non-member to facilitate secret deliberations between members. See Tex. Att'y Gen. Op. No. JC-0307 (2000) at 4. The opinion, relying on DM-95, concluded that " (b]ecause the [OMA] has been construed to apply to situations in which members of a governmental body act as a body but are not in each other's physical presence," such a violation of section 551.143 was possible. Id. Further, the federal district court in Esperanza and the Texas appellate court in Willmann v City of San Antonio relied on these attorney general opinions to hold that in the civil context the OMA is applicable to a governmental body that takes action without a public meeting, even though it avoids the technical definitions of "meeting" and "deliberation." See Esperanza, 316 F. Supp. 2d at 473; Willmann, 123 S.W.3d at 479. And though neither opinion construed section 551.143 in a criminal context, both concluded that "`it would appear that the legislature intended expressly to reach deliberate evasions ofthme definitions in enacting (section 551.143]."' Willmann, 123 S.W.3d at 479 (quoting Tex. Att'y Gen. Op. No. DM-95 (1992) at 5); Esperanza, 316 F. Supp. 2d at 473 (quoting Tex. Att'y Gen. LO-95-055, at 4). These courts' construction of"meeting in numbers less than a quorum" as applying to, for example, a `walking quorum" 5 is consistent with our construction and is consistent with the OMA's definition of "meeting" and "deliberation" Returning to your hypothetical, you ask that we apply section 551.143 to the following hypothetical situation: Commissioner A makes successive telephone calls to Commissioner B and the County Judge. During these conversations Commissioner 'See Willmann, 123 S.W.3d at 478. The Honorable Tom Maness - Page 6 (GA-0326) A discusses a matter which has already been posted for the next regularly scheduled Commissioners' Court meeting and urges either directly or impliedly that Commissioner B and the CountyJudge vote in a certain way. Request Letter, supra note 1, at 3. Generally, three members of the commissioners court constitute a quorum, see TEx. Loc. GOV'T CODE ANN. § 81.006(a) (Vemon 1999), and we assume that in this opinion the hypothetical county commissioners and county judge would constitute a quorum. On the hypothetical's face, without more, we would not be able to answer your question conclusively. Commissioner A appears to violate the statute because he seems to be operating with the requisite culpable mental state and is in fact meeting with a quorum of the commissioners court to secretly discuss public matters. However, proof of his culpable mental state is a fact question the resolution ofwhich is not appropriate to the opinion process. See Tex. Att'y Gen. Op. No. GA-0l 56 (2004) at 10. Furthermore, whether Commissioner B and the County Judge committed a crime is likewise a fact question dependent on proof of their culpable mental state, and the facts described on the face of this hypothetical are insufficient for us to determine as a matter of law that Commissioner B or the County Judge has violated the statute. You ask us, nevertheless, to assume that the commissioners and county judge knowingly conspired to circumvent the OMA. See Request Letter, supra note 1, at 3. Based on such assumptions, because they, in effect, achieved a quorum and held secret deliberations with the intent to avoid an open meeting, Commissioner A, Commissioner B, and the County Judge appear to have violated section 55I.143. Cf. Harris County Emergency Serv. Dist. No. 1 v Harris County Emergency Corps, 999 S.W.2d 163, 169 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (no evidence that the members were attempting to circumvent the OMA by using telephone to avoid a quorum). B. Section 551.143's Constitutionality You also ask whether section 551.143 is unconstitutionally vague on its face. See Request Letter, supra note 1, at 3. Generally, the void -for -vagueness doctrine "requires that a penal statute define the criminal offense with such definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983) (citations omitted). Still, "[a] provision need not ... be cast in terms that are mathematicallyprecise; it need only give fair warning of the conduct prescribed, in light of common understanding and practices." State v Garcia, 823 S. W.2d 793, 798 (Tex. App.—San Antonio 1992, writ ref d). And while the doctrine speaks in terms of actual notice to citizens, its important aspect is "the requirement that a legislature establish minimal guidelines to govern law enforcement." Kolender, 461 U.S. at 358. (citations omitted). A court, moreover, must evaluate a facial challenge to a state law by "consider[ing] any limiting construction that a state court or enforcement agency has proffered." Id. at 355 (citations and internal quotes omitted). The Honorable Tom Maness - Page 7 (GA-0326) Here, the activity made illegal by section 551.143 is quite definite on its face. The Penal Code's definition of "knowingly" applies to section 551.143 because the OMA does not provide a definition of this culpable mental state. See TEX. PEN. CODE ANN. § 1.03(b) (Vernon 2003). Penal Code section 6.03(b) states that (a] person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b); see also Tovar v. State, 978 S-W.2d 594, 586-87 (construing "knowingly" in the context of Government Code section 551.144). And "meeting in numbers less than a quorum for the purpose of secret deliberations" has been understood by civil courts and this office to apply to members of a governmental body who gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of that body. See supra pp. 3-6. Because section 551.143's meaning is plain, it provides adequate notice and does not allow for arbitrary enforcement. Consequently, we conclude that this section is not unconstitutionally vague. The Honorable Tom Maness - Page 8 (GA-0326) SUMMARY Members of a governmental body who knowingly conspire to gather in numbers that do not physically constitute a quorum at any one time but who through successive gatherings secretly discuss a public matter with a quorum of that body violate section 551.143 of the Open Meetings Act. This section is not on its face void for vagueness. Very trul yours, a-at,071(- J6REG Attorney General of Texas BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Daniel C. Bradford Assistant Attorney General, Opinion Committee DATE OF INDICTMENT May 24, 2005 THE STATE OF TEXAS vs. JOHN WPM XV MOORE,11 CAUSE NO. ^� _ S 45 OFFENSE CONSPIRING TO CIRCUMVENT THE OPEN MEETINGS ACT (Official Misconduct) Tex. Gov't. Code §551.143 G: C- Misdemeanor 0 u, ` ti 77 70L- W INDICTMENT IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS: COUNT 1 THE GRAND JURORS for Upshur County, Texas, duty organized as such at the December Term, A.D., 2004, of the 115`' District Court of Upshur County, Texas, upon oath in said Court present that in Upshur County, Texas, JOHN WESLEY MOORE, II, hereafter styled the Defendant, on or about May 17, 2004 and prior to the filing of this indictment, a member of a government body, to -wit: a trustee ofthe New Diana Independent School District Board ofTrustees, knowingly conspired to circumvent Chapter 551 of the Texas Government Code by meeting in a number less than a quorum for the purpose of secret deliberation in violation of Chapter 551 of the Texas Government Code, additionally, Defendant was elected to serve as an officer of the New Diana Independent School District when this offense occurred and Defendant was acting in his official capacity as a trustee. AGAINST THE PEACE AND DIGNITY OF THE STATE.. FOREMAN OF THE GRAND JURY CITY OF COLLEGE STATION PARKS AND RECREATION ADVISORY BOARD ABSENCE REQUEST FORM FOR ELECTED AND APPOINTED OFFICERS I will not be in attendance at the r meeting of the Parks and Recreation Advisory Board for the reason(s) specified: Signature / U Requests for Absence must be submitted to the Parks Staff ff Assistant at 764 3414 prior to the meeting date. City of College Station Absence Request Form For Elected and Appointed Officers Name Request Submitted on I will not be in attendance at the meeting of for the reason(s) specified: 4 �, DecA This request shall be submitted to the office of the City Secretary or Board Secretary one week prior to meeting date. o:counciUabsenreq.d,,c Pam Springfield - Re: Draft November Parks Board Minutes & December's Agenda 11 Page 1 From: Jodi Warner <jodiwarner@gmail.com> To: Pam Springfield <Pspringfield@cstx.gov> Date: 12/6/2005 11:17:05 AM Subject: Re: Draft November Parks Board Minutes & December's Agenda Pam, Please present my request for absence due to a scheduling conflict. Also, please wish everyone a Merry Christmas on my behalf and I look forward to our next meeting. Thank you, Jodi Warner On 12/6/05, Pam Springfield <Pspringfield@cstx.gov> wrote: > Good Morning! > Attached please find the draft minutes from the November regular > meeting of the Parks and Recreation Advisory Board. I have attached the > agenda for next Tuesday's December meeting as well. > If you haven't already notified me of your availability for this > meeting, please do so for quorum purposes. > Thank you! > Pamela Springfield > Staff Assistant > College Station Parks & Recreation Department > (979) 764-3414 > pspringfield@cstx.gov > College Station. Heart of the Research Valley. Blessings! Jodi Warner C 229.8802 Pam Springfield - RE: Draft November Parks Board Minutes & Decembers Agenda Page 1 From: "Byron Blaschke" <bblaschke@cox.net> To: "'Pam Springfield"' <Pspringfield@cstx.gov> Date: 12/6/2005 4:36:51 PM Subject: RE: Draft November Parks Board Minutes & December's Agenda I will not be able to attend the meeting on Tuesday. Have a Merry Christmas and I will see you in the new year. Carol ----Original Message ----- From: Pam Springfield [mailto:Pspringfield@cstx.gov] Sent: Tuesday, December 06, 2005 11:11 AM To: glenn schroeder; Gary Erwin; Harry Green; Jodi Warner; jcrompton@tamu.edu; Carol Blaschke; Kathleen Ireland; Jeannie McCandless; Gary Thomas Cc: Curtis Bingham; David Gerling; David Wood; Glenn Brown; Lance Jackson; Marci Rodgers; Peter Lamont; Pete Vanecek; Ross Albrecht; Ric Ploeger; Steve Beachy Subject: Draft November Parks Board Minutes & December's Agenda Good Morning! Attached please find the draft minutes from the November regular meeting of the Parks and Recreation Advisory Board. I have attached the agenda for next Tuesday's December meeting as well. If you haven't already notified me of your availability for this meeting, please do so for quorum purposes. Thank you! Pamela Springfield Staff Assistant College Station Parks & Recreation Department (979) 764-3414 pspringfield@cstx.gov College Station. Heart of the Research Valley. proposed PArle Laved DeAcaeLow'R,oueLwg Sheet Date COVLOrtO Cowtntec b�: Property Navue: Property owmr: peveLoper's NavKe T*om #: i f —2 t' e � TP hze vi, g IJi : L 0111-etL f46-1,1I 14c —e J peveLopvv.ev,,t services Cowtact: z. copu of this form to Pam: 2. pes Ec.2tiovL chec Ust created s. m2p rece'bveol frovA. developer: 4. PLnO ova Pa20zs Board 2gevA2: S. AeevucO f2Aes{ to peveLoper: �. -oars{ c ec�s�ov�. passes{ ow to DeveLopvu.ev�,t services: 06� u 4 Pam S r � ' . ,.., ...._ ., p ingfield Fwd: Re: Dolly Olden Plat Application Page 11 From: Ric Ploeger To: dmayo@tca.net; Mark McAuliffe Date: 11/29/2005 9:28:10 AM Subject: Fwd: Re: Dolly Olden Plat Application We will place it on the agenda. Eric Ploeger City of College Station P.O. Box 9960 College Station, TX 77842 (979) 764-3415 Phone (979) 764-3773 Fax rploeger@cstx.gov >>> Mark McAuliffe 11/29/05 9:00 AM >>> Mr. Mayo, Please send a copy of the plat to Ric Ploeger. Thank you. Ric, Please que it up for consideration. Thank you. Mark E. McAuliffe Land Agent The City of College Station, Texas P.O. Box 9960 College Station, Texas 77842 979/764-3510 (Telephone) 979/229-3405 (Cellular) 979/776-8871 (Home) 979/764-6377 (Fax) mmcauliffee.cstx.gov (E-Mail) CC: Joey Dunn; Pam Springfield