Agenda Posting for Filling Trustee Spots Violated Texas Open Meetings Act

A south Texas school district’s board of trustees violated the Texas Open Meetings Act after posting an agenda item on the subject of trustee vacancies. Specifically, the board stated it would consider calling a special election to fill the vacancies, but instead the board replaced the trustees by appointment. Two members of the Donna ISD board of trustees resigned, and the board posted agenda language for a January 2016 board meeting stating:

“(1) Discussion and Possible Action on all Available Options for the Filing of Vacancies”;

“(2) Appointment to Fill said Vacancies by the Remaining Members of the Board”; and

“(3) Discussion and Possible Action Regarding Calling a Special Election for May 7, 2016 to Fill the Unexpired Trustee Terms”

However, the board cancelled the January meeting after two members refused to attend, breaking the required quorum. As a result, the subsequent posting for a February 2016 board meeting stated:

“Discussion and Possible Action Regarding Calling a Special Election for May 7, 2016 to Fill the Unexpired Trustee Terms” for the two members’ seats on the Board.

During the February 2016 meeting, a motion to approve a special election for May 7, 2016 failed. The minutes from the meeting reflect that a trustee moved to amend the motion. This amendment substituted the language calling for a special election with language calling for the appointment of David de los Rios and Dennis Ramirez to fill the vacancies caused by the resignations. The minutes further indicate that the board approved the motion allowing for filling the vacancies by appointment.

The 13th Court of Appeals of Texas found that the board violated §§ 551.041 and 551.043 of the Texas Open Meetings Act because the agenda item for the February 2016 meeting only notified the public that the board would discuss a special election to fill the board vacancies, and did not notify the public that the board would discuss filling the vacancies by appointment. The court also held that if the posted agenda states that the school board will consider filling the vacancy by only one of two available procedures, then board action to use the second, unidentified procedure is a violation of the Act.

Board members for school districts and members of other government agencies should take care to properly post agenda language reflecting the actual method used to fill vacant board positions. Taking actions not reflected on the agenda language may lead to unauthorized board actions, and result in a violation of the Texas Open Meetings Act.

Prepared by the offices of Richard Abernathy, this article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s institution. For circumstance-specific legal advice, please directly contact a licensed attorney.