Opinion Released November 30, 2017

Ernesto Lugo v. Donna Independent School District Board of Trustees, No. 13-16-00666-CV (Opinion by Chief Justice Valdez; Panel Members: Justices Contreras and Hinojosa)

In this appeal from an order granting summary judgment to the Donna Independent School District Board of Trustees, the Thirteenth Court of Appeals discussed the requirements of the Texas Open Meetings Act as well as whether a claim for attorney’s fees can revive an otherwise-moot case.

Ernesto Lugo was a trustee on the Donna Independent School District Board of Trustees in 2016. Two other trustees resigned, and Lugo wanted to fill the vacancies with a special election. Lugo and another board member—Efren Ceniceros—publicly announced they would not attend a board meeting on January 27, 2016 because the agenda included an item that would fill the two vacant seats by appointment, so the meeting was not held. A new agenda was then posted for a meeting on February 9, 2016, stating only that the trustees would discuss possible action regarding calling a special election to fill the vacant seats. At the meeting, Lugo moved to hold a special election, but the motion failed. Another trustee member then moved to amend Lugo’s motion to fill the vacant seats by appointing two specific individuals, and the motion was approved.

Lugo filed suit claiming that the Board violated the Texas Open Meetings Act by failing to provide notice of its action in a posted agenda. The Board counter-sued for declaratory relief and sought to recover attorney’s fees.

Lugo moved for partial summary judgment seeking a declaratory judgment that the appointments were void for violating TOMA. The Board responded and filed its own motion for partial summary judgment, claiming that there was a genuine issue of material fact as to whether the public received sufficient notice of the subject of the meeting. The Board further contended that it was entitled to summary judgment because it was not necessary for a governmental unit to include all possible outcomes in an agenda when it indicated that it would consider a given topic.

The trial court denied Lugo’s motion for summary judgment and granted the Board’s motion. Lugo appealed.

Held: The Board violated TOMA because it did not give notice of its intent to discuss or appoint trustees to fill the vacancies. The trial court’s judgment was reversed and the case remanded for entry of partial summary judgment for Lugo.


The Thirteenth Court of Appeals began by reviewing whether the appeal was moot. The Board argued that the case was moot because the two appointees no longer held positions on the Board, while Lugo argued that the case was not moot because of his live claim for attorney’s fees which turned on the validity of his TOMA claim. The Thirteenth Court cited the Texas Supreme Court’s decision in Allstate Ins. Co. v. Hallman, where the Court held that a claim for attorney’s fees “breathes life” into an otherwise-moot appeal. Applying Hallman to Lugo’s appeal, the Thirteenth Court held that the case was not moot because if Lugo was correct that the Board violated TOMA, he would be entitled to attorney’s fees.

TOMA Violation

The court then proceeded to analyze the alleged TOMA violation. Section 551.041 of the Texas Government Code requires a governmental body to “give written notice of the date, hour, place, and subject of each meeting held by the governmental body,” and to post the notice at least 72 hours before the meeting. The notice must fairly alert the public as to the topic for consideration.

Lugo argued that the Board’s notice did not support appointment of the trustees because the notice referenced only the statutory provision regarding replacement via special election, and not the alternative procedure for replacement of trustees by appointment. During oral argument, the Board conceded that the agenda did not give notice that the Board would appoint replacement trustees. The Thirteenth Court of Appeals held that a TOMA violation occurred because the notice did not alert the public that the Board would discuss or actually appoint replacement trustees. Thus, the trial court’s judgment was reversed, and the case remanded for entry of partial summary judgment in favor of Lugo and to determine attorney’s fees.

Read the Full Opinion Here