Burks v. Yarbrough

The only situation in which someone other than the county commissioners' court or county treasurer can seek to compel the return of public funds is where it is asserted that those funds were expended in a meeting in violation of the Open Meetings Act.

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Click here for the full text of this decision FACTS:In August 1999, Louis Pauls & Co. entered into a contract with Galveston County that was approved at an open meeting of the commissioners’ court. According to Galveston County Treasurer Gerald Burks, the county commissioners and Louis Pauls discussed business during a trip to New York in 2001. Burks characterized these meetings as closed meetings in violation of the Texas Open Meetings Act. In July 2000, during an open meeting, the commissioners’ court approved paying a settlement to a former employee. The settlement process was again approved at another meeting on Aug. 24. The settlement check was mistakenly processed as a payroll check, so at an Aug. 28 meeting, the commissioners’ court approved the reissuance of a new check. The commissioners heard Burks’ concerns about how the check was prepared but still reapproved the payment Sept. 11. Burks thought the approval was improper because Aug. 24 was not a regular meeting date for the commissioners’ court. At its regular Oct. 8, 2001, meeting, the commissioners’ court approved payment for development of the county’s Web site. Burks claimed the money was improperly budgeted at two prior meetings. Burks filed two mandamus proceedings against the county auditor. Burks filed another mandamus action against five members of the Galveston County Commissioners’ Court. In all three actions, filed in both county court and a general district court, Burks sought the return of certain county funds he said were appropriated during a violation of the Texas Open Meetings Act. While the cases were pending, Burks lost his re-election bid. He maintained the actions in his individual capacity, not in his official capacity. Without specifying its grounds, the trial court granted the auditor’s and commissioners’ summary judgment motion and denied Burks’ motion. Burks now appeals. HOLDING:Affirmed. One ground asserted by the auditor and the commissioners is that Burks lacked standing in his individual capacity. Though Burks acknowledges that as a taxpayer � and nothing else � he lacks standing to seek reimbursement of money. Burks, however, claims that he has standing under the OMA to challenge violations of that statute. The court agrees and joins the other courts who have considered this action and rules that the OMA does confer broad standing on any member of the interested public. Burks, therefore, has standing to pursue his claim under the OMA. Turning to the specifics of the OMA claim, the court first notes that, because Burks admits that no actions were taken during the New York meetings, he has no basis on which to void the payments to Louis Pauls. The court next addresses the meetings held to approve the settlement payment to the former employee. The court finds that, even if the Aug. 24 meeting was somehow improper, any impropriety was corrected when the commissioners’ court reconvened and reconsidered the issue at the Sept. 11 meeting, which was a regular meeting time. Addressing the questions over payment for the Web site, the court says Burks’ argument is that the commissioners’ court was required to post a notice that it intended to conduct an illegal act: improperly budgeting the money. The court finds the notice given of the Oct. 8 was sufficiently descriptive of what was to take place: approval of funds to pay for the Web site. Nothing in the OMA requires that a governmental body include in its notice that it intends to violate some provision of law. To require such a notice would “bootstrap” every alleged illegal act into an OMA violation. OPINION:Leslie Brock Yates, J.; Yates, Edelman and Guzman, JJ.

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