ACCEPTED
`05-19-00774-CV
`FIFTH COURT OF APPEALS
`DALLAS, TEXAS
`7/16/2019 10:20 AM
`LISA MATZ
`CLERK
`
`
`
`
`No. 05-19-00774-CV
`__________________________________________________________________
`
`IN THE COURT OF APPEALS
`FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS
`AT DALLAS
`__________________________________________________________________
`
`In re RETURN LEE TO LEE PARK,
`WARREN JOHNSON, and KATHERINE GANN,
`
`
`
`Relators.
`__________________________________________________________________
`
`From the 14th District Court of Dallas County, Texas
`Cause No. DC-18-05460
`__________________________________________________________________
`
`SUPPLEMENTAL ORIGINAL PROCEEDING RECORD
`__________________________________________________________________
`
`CHRISTOPHER J. CASO
`Interim City Attorney
`
`PATRICIA M. DE LA GARZA
`Chief of Litigation
`
`JAMES B. PINSON
`Chief of Appellate Section
`
`NICHOLAS D. PALMER
`Deputy Chief of Appellate Section
`
`
`CHARLES S. ESTEE
`State Bar No. 06673600
`charles.estee@dallascityhall.com
`Assistant City Attorney
`
`City Attorney’s Office
`1500 Marilla Street, Room 7DN
`Dallas, Texas 75201
`
`Telephone: 214-670-3519
`Telecopier: 214-670-0622
`
`
`
`ATTORNEYS FOR RESPONDENTS
`
`
` FILED IN
`
`5th COURT OF APPEALS
`
` DALLAS, TEXAS
`
`7/16/2019 10:20:48 AM
`
` LISA MATZ
`
` Clerk
`
`

`

`FILED
`DALLAS COUNTY
`2/12/2019 2:50 PM
`FELICIA PITRE
`DISTRICT CLERK
`Kellie Juricek
`
`
`RETURN LEE TO LEE PARK, ET AL,
`Plaintiffs,
`
`
`
`VS.
`
`
`
`MIKE RAWLINGS, ET AL,
`Defendants.
`
`
`
`
`CAUSE NO. DC-18-05460
`
`§
`§
`§
`§
`§
`§
`§
`
`IN THE DISTRICT COURT
`
`14TH JUDICIAL DISTRICT
`
`DALLAS COUNTY, TEXAS
`
`DEFENDANTS’ REPLY TO PLAINTIFFS’ BRIEF ON MOOTNESS OF OPEN
`MEETING ACT CLAIMS CONCERNING THE GENERAL LEE STATUE
`
`
`TO THE HONORABLE JUDGE OF SAID COURT:
`
`
`
`NOW COME Defendants Mike Rawlings, Scott Griggs, Adam Medrano, Casey Thomas
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`II, Dwaine Caraway, Rickey Callahan, Omar Narvaez, Kevin Felder, Tennell Atkins, Mark
`
`Clayton, Adam McGough, Lee Kleinman, Sandy Greyson, Jennifer Gates, Philip Kingston, and
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`the City of Dallas (“City”) (collectively “Defendants”) and file this document pursuant to the
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`Court’s request.
`
`I.
`
`OVERVIEW
`
`
`
`The Court granted Defendants’ jurisdictional plea or in the alternative summary judgment
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`motion against Plaintiffs’ claims except for the alleged Texas Open Meetings Act (“TOMA”)
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`violation with regard to the removal of the Lee monument. At the February 1, 2019 hearing, the
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`Court directed further briefing solely limited to the issue of mootness of Plaintiffs’ TOMA claim.
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`Plaintiffs’ response raises new contentions, repeats rejected arguments, continues to blend their
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`dismissed procurement claim with TOMA, and resorts to hyperbole rather than presenting
`
`Defendants’ Reply to Plaintiffs’ Brief re the Mootness of TOMA Claim
`
`Page 1 of 16
`
`785
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`

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`evidence or legal authority.1
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`Defendants’ plea and/or alternative summary judgment motion
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`should be granted.
`In their first amended petition, Plaintiffs allege that Defendants violated TOMA but admit
`the notice for “the agenda for the September 6, 20 1 7 meeting included a notice of a vote on removal
`of [the Lee m0nument].” (Pls.’ First Am. Pet. at 22). The relief sought is to void the contract and
`resolution regarding the movement 0f the Lee monument “and restoration 0f the previous status
`
`quo.” (1d,). In their prayer, Plaintiffs seek “mandamus requiring defendants t0 restore and return
`Proctor’s Lee and Young Solider to its plinth under TOMA”. (Id. at 27). In his supplement t0 the
`first amended petition, Plaintiff Johnson sought injunctive relief under TOMA “requiring
`Defendants t0 replace the Lee Statue back Where it was.” (Pls.’ Supp t0 First Am. Pet. at 3).
`FACTUAL BACKGROUND
`II.
`On September 1, 2017, the City Secretary posted the agenda for the September 6, 2017
`City Council meeting. (EX. 3A).2 The notice stated that the City Council was going t0 consider a
`resolution regarding Confederate symbols 0n City property. Among the specific matters t0 be
`
`considered were resolutions “directing the city manager t0 immediately remove and store the
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`Alexander Phimster Proctor monument 0f (Robert E. Lee)”; and “authorizing the city manager t0
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`transfer funds 0r appropriate funds from excess revenue, as necessary, t0 remove all public
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`monuments.” (EX. 3A) (emphasis added). The background description that accompanied the
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`notice stated that, because 0f the unrest across the country over the presence of Confederate
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`1 Defendants maintain there are additional reasons t0 grant their plea or summary judgment motion against
`the TOMA claim as detailed in Defendants” prior filings, including the filing 0fa no evidence and traditional
`summary judgment motion t0 which Plaintiffs elected not t0 respond.
`2 The references to Exhibits are t0 exhibits that Defendants have already presented to the Court. For the
`Court’s convenience, copies 0f the referenced exhibits are attached to this filing.
`Defendants’ Reply t0 Plaintiffs’ Brief re the Mootness 0fTOMA Claim
`Page 2 of 16
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`786
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`monuments, council-members were requesting consideration and action for the removal of such
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`monuments. (Id.).
`On September 6, 2017, the City Council held a public hearing 0n the proposed resolution
`concerning Confederate symbols. (EX. 20). One council-member moved t0 defer the matter until
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`November 15, 2017, the next voting agenda, and also called for a public referendum. The motion
`failed by a vote 0f 13 t0 2. More than thirty people spoke about the proposed resolution. (Id.).
`
`Then, by a vote 0f 13 t0 1, the City Council passed the resolution concerning Confederate
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`monuments, symbols, and names. (Id.). Consistent with the notice, the resolution directed the city
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`manager to immediately remove the Lee monument from the then-named Lee Park, and store it at
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`a safe location. (EX. 4). Pursuant t0 the resolution, the city manager was authorized t0 transfer
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`funds from excess revenue to relocate the Lee monument. (EX. 4). The September 6, 2017
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`resolution also directed the City’s council-appointed task force to conduct public meetings, receive
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`public input, and make recommendations concerning the disposition of the Confederate symbols.
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`(EX. 4).
`
`Before the September 6, 2017 council meeting, City staff endeavored to locate vendors
`who would perform the relocation 0f the Lee statue in the event the City Council ordered its
`
`removal and storage. (EX. 22). City staff located vendors, and the vendors agreed t0 perform the
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`move, if approved, on September 6, 2017, after the City Council’s vote.
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`(1d,). After the City
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`Council voted t0 relocate the Lee statue, the vendors began to remove it. However, as the Lee
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`statue was partially removed from its base, the City received notice that a temporary restraining
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`order (“TRO”) was issued t0 halt the relocation.3 The work stopped and the Lee statue was lowered
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`back onto its base. (Id.).
`
`3 See Patterson v. Rawlings, 287 F. Supp. 3d 632 (ND. Tex. 2018).
`Defendants’ Reply t0 Plaintiffs’ Brief re the Mootness 0fTOMA Claim
`Page 3 of 16
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`787
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`
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`The TRO that put a halt to the removal of the Lee statue was dissolved the following day,
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`but the vendors no longer desired to perform the work. (Ex. 22). The City contacted other vendors
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`to complete the relocation of the Lee statue, but it was difficult to find vendors willing to perform
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`the work. (Id.). The City was ultimately able to locate a vendor willing to perform the work, but
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`only at a cost greater than $50,000. (Id.). On September 14, 2017, the new vendor removed the
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`Lee statue and placed it in storage. (Id.). On December 13, 2017, after a proper and public notice
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`of the meeting and the item to be considered, the City Council authorized the emergency payment
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`to the vendor for the relocation of the Lee statue and ratified the payment as an emergency
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`expenditure. (Exs. 17, 18, 19). The vendor was then paid in full. (Ex. 22).
`
`III. REPLY TO PLAINTIFFS’ “FACTUAL AND LEGAL BASES”
`
`
`
`Ignoring the Court’s directive to limit briefing solely to mootness, Plaintiffs present
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`assorted arguments concerning their various claims that are unrelated to mootness. Defendants
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`could not allow the arguments to go unchallenged but have placed them in a separate section.
`
`
`
`Plaintiffs previously alleged and argued that their TOMA violation was based on their
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`procurement claim. (See Pls.’ First Am. Pet. at 22) (“in failing to comply with state law regarding
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`competitive bidding, the city necessarily failed to comply with the Open Meetings Act …”). In
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`their factual background section in this filing, Plaintiffs present a new argument that the notice for
`
`the September 6, 2017 meeting was insufficient to alert the public that a vote would occur because
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`the agenda item was not directly under the “Voting Agenda” heading. (Pls.’ Brief at 2-4, 10). Yet,
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`they highlight evidence that another council member understood it was a voting item. (Pls.’ Brief
`
`at 5). More than thirty citizens understood and attended the meeting and spoke about it. (Ex. 20).
`
`And as noted above, Plaintiffs’ pleadings admit the notice for “the agenda for the September 6,
`
`2017 meeting included a notice of a vote on removal of [the Lee monument].” (Pls.’ First Am.
`
`Defendants’ Reply to Plaintiffs’ Brief re the Mootness of TOMA Claim
`
`Page 4 of 16
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`788
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`Pet. at 22). This admission alone is sufficient to grant summary judgment against their newly
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`revised claim.
`
`
`
`Because there is no dispute about the content of the notice, the adequacy of the notice is a
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`question of law. Friends of Canyon Lake, Inc. v. Guadalupe–Blanco River Auth., 96 S.W.3d 519,
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`529 (Tex. App.—Austin 2002, pet. denied). The notice states the “Items for Individual
`
`Consideration” included:
`
`
`
`Mayor and City Council
`A resolution … directing the city manager to immediately remove and store” the Lee
`monument.
`(Ex. 3A). There was a separate heading for “Briefings” with other agenda items. (Ex. 3A). The
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`notice included a background memorandum and the draft resolution that was dated September 6,
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`2017 and stated it would be effective on September 6, 2017. (Id.). Simply because a matter was
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`under the heading “Items for Individual Consideration” on the agenda did not indicate that a vote
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`would not be taken. To the contrary, “Items for Individual Consideration” simply means items
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`that were taken up one at a time instead of on the consent agenda where they are all voted on at
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`once. The item in question was clearly listed as a resolution and the city charter requires a majority
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`vote of council to pass a resolution. (Ch. XVIII; see also council rules of procedure § 8). As a
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`matter of law, the notice was more than adequate to advise the public that there was going to be a
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`vote on the immediate removal of the Lee monument.
`
`
`
`Also, in their factual background section and elsewhere, Plaintiffs repeat their argument
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`that Defendants failed to follow City Council’s Rules of Procedure. (Pls.’ Brief at 2, 5, 6, 14-15).
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`Apart from being outside the Court’s briefing request, Plaintiffs present no authority as to how the
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`allegation constitutes a TOMA violation. Defendants have already addressed the contention as
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`factually unsupported, not part of TOMA, and a matter for which Plaintiffs lack standing. (Defs.’
`
`Defendants’ Reply to Plaintiffs’ Brief re the Mootness of TOMA Claim
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`Page 5 of 16
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`789
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`Reply t0 Pls. Response t0 Defs. Plea to Jurisdiction at 9 [filed Nov. 2, 2018]; Defs.’ Brief and
`Evidence in Support 0f Their Pleas and Second Motion for Summary Judgment, at 19-21 [filed
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`Jan. 8, 2019]). Plaintiffs have not responded.
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`In their factual background, Plaintiffs quote the City’s charter concerning procurement
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`Which repeats the exceptions for competitive bidding found under state law. (Compare Pls. ’ Brief
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`at 5 to Tex. Local Gov’t Code, § 252.022(a)).
`preservation 0r protection ofpublic health 0r unforeseen damage t0 public property. Id.4 Plaintiffs
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`Competitive bidding is not required for the
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`then blend the exception t0 competitive bidding requirement and attempt t0 argue the requirements
`under TOMA for emergency meetings required at least a two—hour notice. (Pls. ’ Brief at 5-6). The
`undisputed evidence is notice was given six days prior t0 the meeting. (EX. 3A). The contention
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`is nonsensical and unsupported.
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`In their factual background but without evidence, Plaintiffs speculate that there must have
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`been an illegal meeting because Council-members knew the Lee monument would be moved
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`before the vote and a crane was present at the site before the vote had occurred. (Pls.’ Brief at 7).
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`The matter was posted a week prior to the vote and it is hardly surprising that Council-members
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`had a sense of a likely vote based 0n the public statements 0f other council-members. Similarly,
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`it is hardly surprising that City staffhad made arrangements in preparations and anticipation of the
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`vote.
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`Indeed, Defendants presented undisputed evidence that City staff had secured contracts
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`under $50,000 for the removal if, but only if, the resolution for removal was approved. (See EX.
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`22). Plaintiffs’ claim of an illegal meeting is unfounded and unsupported.
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`4 Plaintiffs have failed t0 present any evidence 0r authority disputing that the contract for the removal 0f
`the Lee monument was properly Within these exceptions.
`Defendants’ Reply t0 Plaintiffs’ Brief re the Mootness 0fTOMA Claim
`Page 6 of 16
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`790
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`Without authority 0r evidence, Plaintiffs complain about the City’s position that the various
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`Confederate symbols are City-owned property located on City property and Plaintiffs’ lack
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`standing to complain about their disposition. (Pls.’ Brief at 7, 8, 9).5 The City 0f Dallas is a city-
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`manager form of government and the City Manager is charged With the responsibility 0f
`administering the city, including its property. (Dallas City Charter, Chapter VI). As long as there
`is n0 other limitation under state 0r municipal law, the City Manager could direct the move of the
`Confederate symbols just as he could direct the move of a garbage truck. Plaintiffs provide n0
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`authority suggesting any limitation 0n the authority granted the City Manager. However, the City
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`Manager and City Council obviously considered the matter 0f public importance and decided t0
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`proceed with public input and a public vote. To the extent that Plaintiffs complain about the
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`ongoing removal 0f the plinth, the plinth was part 0f the Lee monument and its removal part 0f the
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`September 6, 2017 resolution. (See Exs. 4, 25). Defendants have also established that Plaintiffs
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`lack standing and failed t0 allege or establish any waiver 0f governmental immunity regarding the
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`plinth. (See Defs.’ Supp. T0 Their Plea t0 the Jurisdiction Regarding Pls.’ Claims Relating t0 the
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`Plinth, filed Jan. 24, 2019).
`
`Plaintiffs ask the Court t0 take judicial notice of the City Council’s recent briefing
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`concerning the possible disposition 0fthe Confederate Monument. It is ironic that Plaintiffs recite
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`a properly noticed public meeting, in conjunction With multiple prior properly noticed public
`meetings and votes, as suggesting a reason to believe the City Will Violate TOMA. (Pls.’ Brief at
`9). Plaintiffs’ exhibit documenting that briefing notes that removal of the Confederate Monument
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`would be “[p]ending a record vote 0n an upcoming agenda” and because costs were unknown
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`5 The bulk 0f these contentions have been disposed ofthrough the Court’s rej ection of Plaintiffs’ contention
`that the Lee monument was a State Archeological Landmark. (See Order, dated NOV. 14, 201 8).
`Defendants’ Reply t0 Plaintiffs’ Brief re the Mootness 0fTOMA Claim
`Page 7 of 16
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`791
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`“may require[] procurement and City Council authorization.” (Pls. Apr., EX. I at p. 15).6 Any
`consideration of this meeting only further demonstrates compliance with TOMA.
`
`Plaintiffs repeat their contention that a plea to the jurisdiction is decided only by the
`adequacy 0f the pleadings. (Pls.’ Brief at 10-1 1). A plea to the jurisdiction may be based 0n a
`challenge to the pleadings or the evidence or both. Renate Nixdorf GmbH & C0. KG v. TRA
`Midland Properties, LLC, No. 05-17-00577-CV, 2019 WL 92038 at *3 (Tex. App.—Dallas Jan.
`3, 2019, n0 pet.) (“A plea t0 the jurisdiction challenges a trial court's power t0 exercise subject
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`matter jurisdiction over a claim and ‘may challenge the pleadings, the existence ofjurisdictional
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`facts, 0r b0th.”’). Defendants have challenged the existence 0f evidence t0 support jurisdiction
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`and Plaintiffs have failed t0 create a fact issue as t0 the lack ofjurisdiction.
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`Plaintiffs assert that ratification is inapplicable, arguing that City Council cannot “illegally
`deliberate in secret” and then ratify in later open meetings. (Pls.’ Brief at 13). What happened 0n
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`September 6, 2017 was hardly illegal or secret. Indeed, Plaintiffs present and rely 0n the evidence
`0f a very public open meeting. Plaintiffs also misstate the evidence as ratification. When the
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`immediate removal was authorized 0n September 6, 2017, it was fully intended and planned for
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`the work t0 be performed through contracts under $50,000. (EX. 22). It was only after a delay and
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`threats t0 the vendors that the cost escalated and the work was performed. Council only authorized
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`The December meeting was the initial
`payment in December 2017.
`(Exs. 17, 18, 22).
`authorization 0f payment, not ratification. Since the original premise for Plaintiffs’ TOMA claim
`was a Violation 0f the procurement law, the absence 0f a procurement Violation eliminates the
`premise for Plaintiffs’ TOMA claim.
`
`6 If the Court takes judicial notice this meeting as requested, the Court can take judicial notice that one 0f
`the Plaintiffs spoke at the meeting and the Council-members agreed that the disposition 0f the Confederate
`Monument would occur at future City Council meeting.
`Defendants’ Reply t0 Plaintiffs’ Brief re the Mootness 0fTOMA Claim
`Page 8 of 16
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`792
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`
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`Furthermore, governmental bodies may cure TOMA violations. See Fielding v. Anderson,
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`911 S.W.2d 858, 864 (Tex. App.—Eastland 1995, writ denied); see also Smith County v. Thornton,
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`726 S.W.2d 2, 3 (Tex. 1986) (noting that original action that was voidable for lack of adequate
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`notice can be authorized by later action by governmental body that complies with Act). An action
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`taken in violation of the Act cannot be ratified to have retroactive effect, but the governmental
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`body may reconsider and re-authorize an action. Burks v. Yarbrough, 157 S.W.3d 876, 883 (Tex.
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`App.—Houston [14th Dist.] 2005, no pet.). To the extent there was a prior violation, City Council
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`reconsidered and re-authorized the action.
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`
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`Finally, Plaintiffs have a section titled “Additional Authority” where they repeat the
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`arguments mentioned above and claim the notice was defective. (Pls. Brief at 14-15). The notice
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`published on September 1, 2017 advised the public that the City Council was going to consider a
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`resolution calling the immediate removal and storage of the Lee monument. (See Ex. 3A). It was
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`adequate and in compliance with TOMA.
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`IV. THE COURT LACKS JURISDICTION BECAUSE PLAINTIFFS’
`TOMA CLAIM IS MOOT
`
`
`A. Plaintiffs’ remaining claim is moot.
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`
`
`
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`A court lacks subject-matter jurisdiction over moot claims. Heckman v. Williamson County,
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`369 S.W.3d 137, 162 (Tex. 2012). A claim becomes moot if a justiciable controversy between the
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`parties no longer exists—that is, if the issue presented is no longer “live,” or if the parties lack a
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`legally cognizable interest in the outcome. Id. “Put simply, a case is moot when the court's action
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`on the merits cannot affect the parties' rights or interests.” Id.
`
`
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`Plaintiffs’ TOMA claims were moot before this litigation ever began. The September 6,
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`2017 meeting was properly noticed and occurred, the Lee statue was relocated, the contracts were
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`performed, there was a subsequent publicly noticed meeting where the disposition of Confederate
`
`Defendants’ Reply to Plaintiffs’ Brief re the Mootness of TOMA Claim
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`Page 9 of 16
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`793
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`symbols was debated, and there was another publicly noticed meeting where payment for the
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`relocation work was authorized. (Exs. 6, 17, 18, 21). An interested party may seek an injunction
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`or a mandamus to stop, prevent, or reverse a violation of TOMA but actions taken in violation are
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`voidable, not void. Meeker v. Tarrant County College District, 317 S.W.3d 754, 757-58 (Tex.
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`App.—Fort Worth 2010, pet. denied). The authorized injunctive or mandamus relief is limited to
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`the violation of TOMA. If the actions taken in violation are complete or the actions have been
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`authorized at a properly noticed meeting, a claim of a TOMA violation is moot because there is no
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`action on the merits that a court could take that would affect the parties’ rights or interests. A
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`judicial decision simply addressing whether a TOMA violation had occurred would have no
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`practical effect on the parties, would be merely advisory, and the claims are therefore moot.
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`Several decisions illustrate how TOMA claims are rendered moot.
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`
`
`In Gilliam v. Santa Fe Independent School District, No. 01-14-00186-CV, 2016 WL
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`828055, at *1 (Tex. App.—Houston [1st Dist.] Mar. 3, 2016, no pet.) (mem. op.), the plaintiffs
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`claimed that the defendant school district violated TOMA regarding the construction of an
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`agricultural center. The court affirmed the dismissal of the TOMA claims on mootness grounds
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`because the center was fully operational and all contracts related to the center’s construction had
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`been fully performed. Id. at *3-4.
`
`
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`In Meeker v. Tarrant County College District, 317 S.W.3d 754, 757-58 (Tex. App.—Fort
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`Worth 2010, pet. denied), the plaintiff alleged that two prior contracts were made in violation of
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`TOMA. However, a subsequent contract superseded the prior contracts, and the court concluded
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`that the TOMA claims were moot because the contracts at issue were superseded. Id. at 758-62.
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`
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`In Fiske v. City of Dallas, 220 S.W.3d 547 (Tex. App.—Texarkana 2007, no pet.), a
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`municipal judge alleged a TOMA violation regarding reappointments to serve as judge. As part
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`Defendants’ Reply to Plaintiffs’ Brief re the Mootness of TOMA Claim
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`Page 10 of 16
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`794
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`of the relief, he sought reinstatement. However, the court found the claim moot because “[t]he
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`City has now appointed new judges for all positions, and the term of office to which Fiske seeks
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`reinstatement has expired. Therefore, there is no declaration or judgment we could make that could
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`have the effect of restoring to Fiske what she lost allegedly because” of any TOMA violation. Id.
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`at 550.
`
`
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`In Cornyn v. City of Garland, 994 S.W.2d 258 (Tex. App.—Austin 1999, no pet.), the
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`plaintiff claimed the city’s past notices for meetings were deficient and violated TOMA. The court
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`held that the claim about past violations was moot and that the request for injunction and for writ
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`of mandamus required an advisory opinion. Id. at 266.
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`
`
`In Cook v. Hedtke, No. 03-17-00663-CV, 2018 WL 1660078 (Tex. App.—Austin Apr. 6,
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`2018, no pet.) (mem. op.), the claimed TOMA violation was based on a refusal to allow recordings
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`of meeting. The claim became moot when recordings were allowed and plaintiff attended and
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`recorded subsequent meetings. Id. at *2-3.
`
`
`
`In City of Galveston v. Saint–Paul, No. 01-06-00580-CV, 2008 WL 384145, at *6 (Tex.
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`App.—Houston [1st Dist.] 2008, pet. denied) (mem. op.) the claim was made that approval of an
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`option agreement was made at a meeting in violation of TOMA. The court found the claim moot
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`because the governmental entity entered into a replacement agreement at a properly noticed
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`meeting. Id. at *6.
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`
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`In Gattis v. Duty, 349 S.W.3d 193, 201–02 (Tex. App.—Austin 2011, no pet.), the plaintiff
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`challenged the transfer of county funds as violating TOMA but the claims were rendered moot
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`because the commissioner’s court readopted the transfer in a subsequent properly noticed meeting.
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`See also Love Terminal Partners, L.P. v. City of Dallas, 256 S.W.3d 893, 896-97 (Tex. App.—
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`Dallas 2008, no pet.) (holding that claims that contract was entered into in violation of TOMA
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`Defendants’ Reply to Plaintiffs’ Brief re the Mootness of TOMA Claim
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`Page 11 of 16
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`795
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`were mooted when contract was incorporated into federal law); In re Smith County, 521 S.W.3d
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`447, 454–55 (Tex. App.—Tyler 2017) (orig. proceeding) (denying mandamus petition as moot
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`because granting requested relief would have no practical effect and would “only amount to an
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`advisory opinion”); Brownsville Indep. Sch. Dist. Bd. of Trs. v. Brownsville Herald, 831 S.W.2d
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`537, 538 (Tex. App.—Corpus Christi 1992, no writ) (dismissing TOMA dispute as moot where
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`the allegedly improper meeting “has been held” and “[w]e do not see how any decision . . . about
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`the propriety of that meeting can be anything but advisory”). Like the TOMA claims in those
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`cases, Plaintiffs’ claim of a TOMA violations in this case is moot.
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`
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`In their response, Plaintiffs principally rely on City of Farmers Branch v. Ramos, 235
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`S.W.3d 462 (Tex. App.—Dallas 2007, no pet.). In that case, the plaintiff sued the city seeking
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`judicial declarations that the City violated TOMA by conducting closed meetings relating to a
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`controversial city ordinance. Id. at 469. In addition to declaratory relief, the plaintiff sought
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`disclosure “to the public [of] all transcripts, minutes, recordings, and other evidence of closed
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`meetings as well as requir[ing the city] to comply with TOMA in the future.” Id. After the lawsuit
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`was filed, the City repealed the ordinance at issue, sought dismissal of Ramos's lawsuit, and argued
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`the case was moot because the ordinance at issue had been repealed. Id. at 465, 469. The court
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`held the case was not moot because of potential remedial relief available if the plaintiff proved a
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`violation of TOMA. Id. Specifically, if Ramos succeeded, the trial court could have ordered the
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`production of the documents and information from the closed meetings. Id. Here, Plaintiffs do not
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`seek other potential remedial relief under TOMA. There were no closed meetings relating to the
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`removal of Confederate symbols. Again, their claims were moot before the litigation ever began.
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`
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`Plaintiffs also rely on City of Austin v. Savetownlake.org, No. 03–07–00410–CV, 2008 WL
`
`3877683 (Tex. App.—Austin Aug. 22, 2008, no pet.) (mem. op.) and contend the court rejected a
`
`Defendants’ Reply to Plaintiffs’ Brief re the Mootness of TOMA Claim
`
`Page 12 of 16
`
`796
`
`

`

`similar mootness challenge based on a later-changed ordinance. (Pls.’ Brief at 13). The case
`
`involved a development code adopted in 2005 allegedly in violation of TOMA. The city argued
`
`that a 2007 amendment of the code mooted the TOMA claim. The court rejected the contention:
`
`Because the permit applications for the two development projects challenged by
`Savetownlake in the underlying suit were filed in 2006, the prior regulations would
`apply to those applications. Thus, the 2007 changes to the City's ordinance
`regarding appeal rights do not render Savetownlake's complaints moot.
`
`Id. at 6. Once again, there was remedial action that could be impacted by a determination
`
`that TOMA had been violated. And again, in the case at bar, there is no remedial action
`
`sought by Plaintiffs dependent on a finding of a TOMA violation. The work is complete,
`
`the contracts are complete, and payment is complete; therefore, Plaintiffs’ TOMA claim is
`
`moot. Gilliam, 2016 WL 828055, at *3-4.
`
`B. Plaintiffs do not dispute that capable-of-repetition-yet-evade-review does not apply.
`
`
`
`Plaintiffs previously made the conclusory assertion that mootness did not apply to any of
`
`their claims because of the capable-of-repetition-yet-evading-review exception. (Pls.’ Suppl. to
`
`First Am. Pet. at 2). Defendants presented authority and evidence establishing the exception did
`
`not apply to any of Plaintiffs’ claims. (Defs.’ Brief and Evidence in Support of Their Pleas and
`
`Second Motion for Summary Judgment, at 8-11 [filed Jan. 8, 2019]). Plaintiffs did not challenge
`
`or dispute that the exception was inapplicable. In their latest brief, Plaintiffs do not assert that the
`
`exception applies. Cf. Cornyn v. City of Garland, 994 S.W. 2d 258 (Tex. App.—Austin 1999, no
`
`pet.) (holding the capable-of-repetition-yet-evading-review exception did not apply to TOMA
`
`claims). Further, it is Plaintiffs’ burden to establish the exception. Rines v. City of Carrollton,
`
`No. 05–15–01321–CV, 2018 WL 833367, at *9 (Tex. App.—Dallas Feb. 13, 2018, pet. denied).
`
`Plaintiffs have offered no evidence and no argument to support the application of the exception.
`
`Defendants’ Reply to Plaintiffs’ Brief re the Mootness of TOMA Claim
`
`Page 13 of 16
`
`797
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`

`

`Plaintiffs’ TOMA’s claim is moot, there is n0 exception, and the claim should be dismissed for
`
`lack ofjurisdiction.
`
`CONCLUSION AND PRAYER
`WHEREFORE, Defendants request that the Court sustain Defendants’ plea to the
`
`jurisdiction as to Plaintiffs’ remaining claim, and, alternatively, Defendants request that the Court
`
`grant Defendants’ summary judgment motion against the remaining claim, and grant Defendants
`
`such other and further relief, general 0r special, at law 0r in equity, as to which the Defendants
`may be entitled, and enter final judgment against Plaintiffs.
`
`Respectfully submitted,
`OFFICE OF THE CITY ATTORNEY
`CITY OF DALLAS, TEXAS
`
`By S/ Charles S. Estee
`
`Charles S. Estee
`Assistant City Attorney
`State Bar of Texas No. 06673600
`Email: Charles.estee@dallascitvhall.com
`
`Stacy Jordan Rodriguez
`Executive Assistant City Attorney
`Texas Bar No. 11016750
`Email: stacv.rodriguez@dallascitvhall.com
`7BN Dallas City Hall
`1500 Marilla Street
`Dallas, Texas 75201
`Telephone — 2 14/670-35 19
`Telecopier — 214/670-0622
`
`Defendants’ Reply to Plaintiffs’ Brief re the Mootness of TOMA Claim
`Page 14 of 16
`
`798
`
`

`

`CERTIFICATE OF SERVICE
`I certify that opposing counsel was served with a true and correct copy 0f the foregoing
`
`document Via e-service through and electronic filing service provider 0n this 12th day of February
`
`2019.
`
`S/ Charles Estee_
`Charles S. Estee
`
`Defendants’ Reply t0 Plaintiffs’ Brief re the Mootness 0fTOMA Claim
`Page 15 0f 16
`
`799
`
`

`

`APPENDIX
`
`A11 the exhibits have been previously submitted by the parties and are repeated here for the Court’s
`convenience.
`Exhibit 3A
`
`Excerpt of September 1, 2017 notice for September 6, 2017 City Council meeting.
`Excerpts of the notice have been previously provided as Defendants Exhibit 3 to
`their filings and as Exhibit C ofPlaintiffs’ Appendix, pp. 20-25, filed Oct. 3 1 , 2018.
`A complete copy of the notice for the meeting including all items under
`consideration, which the Court may take judicial notice 0f, is available at
`https://dallascitvhall.com/government/Counci1%2OMeeting%20Documents/Agenda 0906 1 7.pdf
`
`Exhibit 4
`
`September 6, 2017 City Council resolution
`
`Exhibit 17
`
`December 1, 2017 notice for December 13, 2017 City Council meeting
`
`Exhibit 18
`
`City Council minutes for December 13, 2017
`
`Exhibit 19
`
`City Council resolution for December 13, 2017
`
`Exhibit 20
`
`Exhibit 21
`
`City Council minutes for September 6, 2017
`(Also see Exhibit D 0f Plaintiffs’ Appendix, pp. 26, 34-40, filed Oct. 3 1, 2018)
`April 13, 2018 notice for April 25, 2018 City Council meeting
`
`Exhibit 22
`
`Erick Thompson Affidavit
`
`Exhibit 25
`
`Kay Kallos Affidavit
`
`Defendants’ Reply to Plaintiffs’ Brief re the Mootness of TOMA Claim
`Page 16 0f 16
`
`800
`
`

`

`l
`
`,w
`
`‘4
`
`2;?ibzx'fifz"!
`
`COUNCIL
`BRIEFING
`AGENDA
`
`September 6, 2012
`Date
`
`EXHIBIT
`
`3 fl
`
`g
`
`(For General Information and Rules of Courtmsy, Please See Opposite Side.)
`(1a Informacién General Y Reglas De Cortesia Que Deben Observarse
`Durante Las Asambleas Del Consejo Municipal Aparecen En E1 Lado Opuesto, Favor De Ieerlas.)
`
`801
`
`

`

`AGENDA
`CITY COUNCIL BRIEFING MEETING
`WEDNESDAY, SEPTEMBER 6, 2017
`CITY HALL
`1500 MARILLA STREET
`DALLAS, TEXAS 75201
`9:00 A.M.
`
`9:00 am
`
`Invocation and Pledge of Allegiance
`
`Special Presentations
`Open Microphone Speakers
`
`VOTING AGENDA
`Approval of Minutes of the August 16, 201 7 City Council Meeting
`
`1.
`
`6ES
`
`6ES
`
`2.
`
`3.
`
`Consideration of appointments to boards and commissions and the evaluation and
`duties of board and commission members (List of nominees is available in the City
`Secretary's Office)
`ITEMS FOR "\QIVLDUAL CONSIDERATION
`Mayor and City Council
`A resolution (1) acknowledging that public Confederate monuments and the names
`