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Click here for the full text of this decision FACTS:On Nov. 13, 2006, the Farmers Branch City Council adopted two ordinances, numbered 2892 and 2893. Ordinance 2892 mandated that owners or property managers of apartment complexes require proof of citizenship or eligible immigration status for prospective tenants. Ordinance 2893 was directed at property maintenance and required, among other things, that flower pots and other landscape receptacles contain living plants. Opponents denounced the ordinances as illegally targeting the city’s Hispanic population. Three weeks later, Guillermo Ramos filed suit against the city of Farmers Branch, and its mayor and council members (the appellants), asserting that the appellants enacted the ordinances in violation of the Texas Open Meetings Act (TOMA). Ramos alleged that the appellants deliberated on and agreed upon both ordinances in closed meetings in violation of TOMA. Ramos also alleged that the notice for the vote on Ordinance 2892 was insufficient. Ramos sought injunctive and declaratory judgment relief as well as attorneys’ fees. The appellants denied the allegations and filed a plea to the jurisdiction, asserting that Ramos failed to plead sufficient facts to establish a valid TOMA violation. While the plea to the jurisdiction was pending, Ramos and other residents presented the city with a petition, signed by more than 10 percent of the registered voters, seeking either repeal of Ordinance 2892 or a public vote. On Jan. 8, 2007, the appellants adopted Ordinance 2900, which submitted the rental ordinance for a public vote. Nine days later, the appellants adopted ordinance 2903, which repealed both Ordinances 2892 and 2900, restated the substance of the rental ordinance, and called a public vote for May 2007. During the time in which the appellants took these actions, the trial court conducted several hearings on matters related to the suit, including the plea to the jurisdiction. Although the appellants did not amend their plea, they notified the trial court of repeal of Ordinance 2892 in a status conference in late January. One week later, the trial court denied the appellants’ plea to the jurisdiction. The appellants brought an interlocutory appeal under Texas Civil Practice & Remedies Code �51.014(a)(8). In three issues, the appellants contended that the trial court erred in denying their plea because: 1. Ramos’ suit failed to plead sufficient facts to assert a valid cause of action under TOMA and overcome their sovereign immunity; 2. Ramos’ claims were moot; and 3. no valid cause of action existed based upon subsequent ratification. HOLDING:Affirmed. To begin, the court concluded that a person sued in an official capacity, as in the case of the appellants in this suit, may appeal an interlocutory order denying a jurisdictional plea. Moving on to the appellants’ first issue, the appellants argued that the trial court improperly denied their jurisdictional plea because Ramos’ pleadings failed to allege facts constituting a TOMA violation. If a plaintiff’s pleadings are insufficient to establish jurisdiction, but do not affirmatively demonstrate an incurable defect, the court stated that the plaintiff should be afforded the opportunity to replead. One exception to TOMA, the court stated, allows a governmental body to privately consult with its attorney when it is seeking advice about pending or contemplated litigation or a settlement offer or on a matter in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with TOMA. Under Texas Government Code �551.041, the court stated, TOMA requires a governmental body to give notice of the date, hour, place and subject of each meeting. The appellants asserted that proper notice was given and, as evidence, relied not on the agenda, but the city council minutes of the meeting. But the minutes of the meeting, the court stated, cannot negate allegations that the agenda failed to provide sufficient notice. Thus, the court found that Ramos’ petition sufficiently stated a claim for a notice violation under TOMA. The court also found that the pleadings sufficiently stated that the appellants drafted, deliberated, debated and agreed upon the ordinance behind closed doors, because the appellants failed to show that a TOMA provision excepting closed-door meetings for attorney consultations applied. Accordingly, the court concluded that the trial court did not err in denying the appellants’ plea to the jurisdiction for reasons related to the sufficiency of pleadings. In their second issue, the court noted, the appellants argued that the trial court erred in denying their plea because Ramos’ claims with respect to Ordinance 2892 were moot because they repealed the ordinance. The court agreed with Ramos that if a governmental body illegally deliberates and decides an issue in closed session, repealing the action so that it can be retaken in a later setting does not vindicate the very right protected by TOMA. Accordingly, the court concluded that Ramos’ request for a declaration that the appellants violated the statute, coupled with a the potential remedy involving the certified agenda of the executive session at issue, established that this issue was not moot. OPINION:Francis, J.; Richter, Francis and Lang-Miers, JJ.

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