Q&A: Sale of public land requires public notice

Q: Without advertising the availability of land for purchase, our county hospital district agreed to sell an adjacent strip of land to an individual. As far as we can tell at this point, it was the buyer who approached the district, not the other way around, and remarkably, a deal was made without public knowledge or consent. But governmental bodies are required to use the public bidding process to sell or otherwise transfer real property, aren’t they?

A: Because this is about a county hospital district (not a city, school district or other local governmental body) please see Health and Safety Code Sec. 262.031, SALE OF PROPERTY; GENERAL PROVISIONS. It says: (a) The board may sell, through sealed bids or at a public auction, real property acquired by gift or purchase that the board determines is not needed for hospital purposes if the sale does not violate:

(1) a trust indenture or bond resolution relating to outstanding bonds of the authority; 

(2)  prior restrictions placed on the use of the property;  or

(3)  an agreement between the authority and a nonprofit corporation under Chapter 223.

(b)  If the board conducts the sale by sealed bids, the board shall provide notice of the sale under Section 272.001, Local Government Code.

(c)  If the board conducts the sale by public auction, the board shall publish a notice of the sale once a week for three consecutive weeks in a newspaper of general circulation in each municipality in the authority.  The notice must include a description of the property and the date, time, and place of the auction.  The first notice must be published not later than the 21st day before the date of the auction.

Next, let’s look at the above-referenced Local Government Code Sec. 272.001, concerning the process for conducting the sale by sealed bids. Under paragraph (a) please find the words: “must be published in a newspaper of general circulation in either the county in which the land is located or, if there is no such newspaper, in an adjoining county. The notice must include a description of the land, including its location, and the procedure by which sealed bids to purchase the land or offers to exchange the land may be submitted. The notice must be published on two separate dates and the sale or exchange may not be made until after the 14th day after the date of the second publication.”

Q: Does the Texas Open Meetings Act specifically state somewhere that the vote to enter negotiations for a settlement must be done in open session? This has to do with my school board.

A: For a governmental body to meet in a closed session to enter negotiations on a settlement, the intention to do so must appear as an item on the agenda that is published at least 72 hours before the meeting. To clearly differentiate this negotiation as something that’s going to take place behind closed doors, a member of the governmental body makes a motion in open session calling for a vote to address the item in closed session. That motion must be seconded. Next, to bring the question on the motion to a vote, the chair then restates the motion and cites the Texas Open Meetings Act exception that authorizes deliberations in closed session. The reason might be, for example, Government Code Sec. 551.071, Consultations with Attorney; or Sec. 551.074, Personnel Matters.

By the way, the public information side of this issue was addressed by the Texas Legislature in the form of House Bill 1630 by Ramon Romero Jr., D-Fort Worth, and sponsored by Sen. Joan Huffman, R-Houston. The bill was passed by the House and then by the Senate — but with amendments — and too late to achieve House concurrence in Senate amendments. So the bill died. Had concurrence on HB 1630 been achieved in time, Chapter 116, titled Limit on Settlement of Claim or Action Against a Governmental Unit, would have been added to the Civil Practice and Remedies Code, giving the public access to details of a settlement equal to or greater than $30,000.

Q: What does Texas law currently say about text and email messages between or among members of a governmental body?

A: In 2013, the Texas Legislature amended the Texas Open Meetings Act by adding Government Code Sec. 551.006, titled Written Electronic Communications. As stated on page 4 of the Texas Attorney General’s 2014 Open Meetings Handbook, 551.006 provides that a communication between members of a governmental body and its authorized staff about public business “does not constitute a meeting or deliberation” if the communication is written and posted to an online message board that is accessible to the public. Also, as stated in the handbook, 551.006 imposes requirements for the online message board and sets forth that a “governmental body may not vote or take any action . . . by posting a communication to the online message board.”