NUMBER 13-13-00397-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CITY OF DALLAS, Appellant,
v.
KEN PAXTON,
ATTORNEY GENERAL OF TEXAS, Appellee.
On appeal from the 126th District Court of
Travis County, Texas.
MEMORANDUM OPINION
Before Justice Garza, Perkes and Longoria
Memorandum Opinion by Justice Garza
In this lawsuit under the Public Information Act (“the PIA”), see generally TEX.
GOV’T CODE ANN. §§ 552.001–.353 (West, Westlaw through 2013 3d C.S.), the issue is
whether the City of Dallas’s (“the City”) confidential attorney-client communications are
excepted from required public disclosure under the PIA when the City was late in
requesting an attorney general decision on the information. The City argues that the fact
that the information constitutes confidential attorney-client communications is a
compelling reason to withhold the information from disclosure under section 552.302 of
the government code, see TEX. GOV’T CODE ANN. § 552.302 (West, Westlaw through 2013
3d C.S.), and that the information is therefore excepted from public disclosure. Appellee,
Ken Paxton, Attorney General of the State of Texas (“the AG”),1 argues that the City has
failed to demonstrate a compelling reason to withhold the information and that the
information must be disclosed. The trial court rejected the City’s argument and held that
the City had failed to show a compelling reason to protect the attorney-client privileged
communications at issue from public disclosure. The trial court also awarded the AG
attorney’s fees in the amount of $5,500.00, plus conditional attorney’s fees on appeal,
and costs. For the reasons that follow, we reverse the trial court’s judgment and render
judgment that the attorney-client privileged communications at issue are excepted from
disclosure under the PIA.
I. BACKGROUND2
The parties submitted the following agreed statement of facts to the trial court
under Texas Rule of Civil Procedure 263, see TEX. R. CIV. P. 263:
1. On February 20, 2008, the City of Dallas received a Public
Information Act request by email from Mr. Sam Merten. The request
1This suit was originally brought in the name of the Honorable Greg Abbott, former Texas Attorney
General. Pursuant to Rule 7.2, we automatically substitute the name of his successor in that office, the
Honorable Ken Paxton. See TEX. R. APP. P. 7.2.
2 This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to an
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2013 3d C.S.).
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included, in pertinent part: "All documents and email correspondence
to or from any council member, Mayor Tom Leppert, City Manager
Mary Suhm or Assistant City Manager A.C. Gonzales regarding the
convention center hotel." Ex. 2 is a copy of Merten's request.
2. On April 29, 2008, the City sent a letter to the Attorney General
asking whether the requested information could be withheld from the
requestor. Ex. 4 is a copy of that letter.
3. Along with its April 29, 2008 letter, the City also submitted to the
Attorney General a copy of Mr. Merten's request, a representative
sample of the information at issue, and comments stating the
reasons why the information ought to be withheld under PIA §§
552.101, 552.107(1), and Texas Rule of Evidence 503(b)(1). Ex. 1 is
a copy of the representative sample of information.
4. On April 29, 2008, the City notified Mr. Merten that it was requesting
a decision from the Attorney General and sent him a copy of its April
29, 2008 letter to the Attorney General.
5. The City's letter to the Attorney General was not sent within 10
business days of receipt of Mr. Merten's written request for
information as required by PIA § 552.301. Ex. 4 at 1.
6. The Attorney General in Letter Ruling OR2008-08859 concluded that
the City did not comply with the procedural requirements of section
552.301 in requesting a ruling and the attorney-client privilege
exception, PIA § 552.107, is not a compelling reason to withhold the
requested information from disclosure. Ex. 3 at 2; see PIA §§
552.301(b), (e), .302. Therefore, the Attorney General concluded the
City could not withhold any portion of the submitted information under
section 552.107(1). Ex. 3.
7. The Attorney General did not address the City's claim that Exhibit 1
is confidential under section 552.101 in conjunction with Texas Rule
of Evidence 503. Ex. 3, at 1 n.1.
8. The Attorney General also concluded certain mandatory exceptions
were compelling reasons to withhold the requested information from
disclosure and ruled that portions of the requested information were
confidential pursuant to PIA §§ 552.117 and 552.137. Ex. 3. The
information subject to sections 552.117 and 552.137 is not at issue
in this case.
9. The City filed this lawsuit on July 14, 2008, challenging Texas
Attorney General Letter ruling OR2008-088S9.
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10. This Court, in granting the City's motion for summary judgment in
part, determined that the documents at issue (Exhibit 1) qualify as
attorney-client communications. Exs. 5, 6. This Court denied all other
grounds and did not rule on whether the City demonstrated a
compelling reason to withhold the requested information from public
disclosure. Exs. 5, 6, 7.
11. The Attorney General has incurred attorney fees in this Court in the
reasonable amount of $10,875.00.
12. In the event of an appeal to the court of appeals, the Attorney
General will incur attorney fees in that court in the reasonable
amount of $5,000.00.
13. In the event of a further appeal to the Supreme Court of Texas, the
Attorney General will incur attorney fees in that court in the
reasonable amount of $5,000.00.
On April 8, 2013, the trial court sent the following letter to the parties explaining its
forthcoming ruling:
On April 2, 2013, the Court considered the merits in the above-
referenced cause, which were presented on an agreed statement of facts
pursuant to Rule 263 of the Texas Rules of Civil Procedure. After
considering the statement of facts, the evidence offered, the legal
arguments of counsel and the applicable legal authority, the Court will find
as follows regarding the grounds asserted by the parties in their Joint Motion
for Judgment on Agreed Statement of Facts.
The Court will grant the Attorney General's Ground No. 2 in part. The
Court agrees with the Attorney General that when a party does not timely
request an opinion regarding a public information request, the governmental
body may not simply assert the attorney-client privilege generally to prevent
the disclosure of the information, but must also show some additional
compelling reason for the particular information to be withheld. The City of
Dallas argues generally that the confidentiality of all attorney-client
privileged information is a compelling reason in and of itself. The argument
essentially is that all attorney-client privileged information may always be
withheld by governmental bodies, even when an opinion from the Attorney
General is not timely requested. This Court rejects that argument. After
reviewing the documents in camera, the Court will find that the City of Dallas
has not met its burden of proof and persuasion in showing that the
information requested should be protected.
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The Court, however, does not grant the Attorney General's Ground
No.2 fully, because in the appropriate circumstances confidentiality could
provide a compelling reason for particular information to be withheld.
Although a governmental body cannot argue generally that confidentiality is
sufficient to all attorney-client privileged information, there could be a cogent
and compelling argument made that allows particular information to be
withheld based on confidentiality. Consequently, the Court does not
foreclose all future reliance on the reason of confidentiality, but the reason
will likely need to be part of a comprehensive argument relating to the
particular information then involved.
Based upon the previous analysis, the Court will deny the City's
Ground in full. The Court will find that the presumption of openness for the
information controls and City of Dallas is required to release the information
to the requestor pursuant to the Attorney General's Letter Ruling OR2008-
08859. After considering all litigation in this matter, including the Court's
prior rulings contained in Order on Motions for Summary Judgment signed
on April 6, 2011, the Court will find that the reasonable and necessary
attorney's fees for the Attorney General to defend the case through trial is
$5,500.00, and awards that amount, along with the attorney's fees
requested by the Attorney General for purposes of appeal.
On May 13, 2013, the trial court signed a final judgment reflecting its ruling and
stating that the City had “failed to show a compelling reason to protect the attorney-client
privileged communications at issue from public disclosure.” This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
Rule of Civil Procedure 263 provides for presentation of a case to the trial court on
stipulated facts. See TEX. R. CIV. P. 263. “A case submitted under rule 263, like a special
verdict, is a request by the parties for judgment in accordance with the applicable law.”
Patterson-UTI Drilling Co. v. Webb Cnty. Appraisal Dist., 182 S.W.3d 14, 17 (Tex. App.—
San Antonio 2005, no pet.) (quoting SLW Aviation, Inc. v. Harris Cnty. Appraisal Dist.,
105 S.W.3d 99, 102 (Tex. App.—Houston [1st Dist.] 2003, no pet.)). “There are no
presumed findings in favor of the judgment in a case submitted under rule 263 because
the trial court had no factual issues to resolve.” Id. “The only issue to resolve on appeal
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is whether the trial court correctly applied the law to the agreed facts.” Id. “Our review is
de novo in an agreed case because the issue before us is purely a question of law.” Id.
Rule 263 states that an agreed statement of facts and the judgment constitute the record
for the case. TEX. R. CIV. P. 263.
The Public Information Act mandates disclosure of public information
upon request to a governmental body, but excepts certain categories of
information from the disclosure requirement. See TEX. GOV'T CODE §§
552.021, 552.221, 552.101–.136. A governmental body wishing to claim an
exception must make a timely request for an attorney general's opinion as
to the exception's applicability. Id. § 552.301(a). If a request is not timely
made, the information is presumed subject to disclosure unless there is a
compelling reason to withhold it. Id. § 552.302.
City of Dallas v. Abbott, 304 S.W.3d 380, 381 (Tex. 2010).
Section 552.101 of the PIA provides that information is excepted from disclosure
“if it is information considered to be confidential by law, either constitutional, statutory, or
by judicial decision.” TEX. GOV'T CODE ANN. § 552.101 (West, Westlaw through 2013 3d
C.S.); City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 n.5 (Tex. 2000).
Section 552.107 of the PIA provides that information is excepted from disclosure if “it is
information that . . . an attorney of a political subdivision is prohibited from disclosing
because of a duty to the client under the Texas Rules of Evidence or the Texas
Disciplinary Rules of Professional Conduct[.]” TEX. GOV’T CODE ANN. § 552.107(1); see
TEX. R. EVID. 503 (providing for attorney-client privilege to prevent disclosure of
confidential communications); TEX. DISCIPLINARY RULES PROF’L CONDUCT 105(b), reprinted
in TEX. GOV’T CODE ANN., tit. 2, subtit G app. A (West, Westlaw through August 2014)
(TEX. STATE BAR R. art. X, § 9) (prohibiting a lawyer from disclosing privileged and other
confidential client information).
III. DISCUSSION
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By its first and second issues,3 the City argues that “[t]he policy reasons for the
lawyer-client privilege are intrinsically compelling reasons to withhold a governmental
body’s confidential attorney-client communications from public disclosure under Texas
Government Code section 55.302.” See TEX. GOV’T CODE ANN. § 552.302. By several
sub-issues, the City argues that: (1) the attorney-client privilege is “inherently,
categorically compelling” because it is based on the policy recognizing that protecting the
privilege is more beneficial than requiring public disclosure of attorney-client
communications; (2) the requested information is excepted from disclosure under section
552.101 of the PIA because the information is confidential under the rules of evidence,
which are “law”; and (3) the requested information is excepted from disclosure under
section 552.107 of the PIA because its disclosure is prohibited by the ethics rules. We
first address the City’s argument that the information is excepted under section 552.101
of the PIA.
In Abbott v. City of Dallas, the Austin Court of Appeals recently addressed this
issue. No. 03-13-00686-CV, 2014 WL 7466736 (Tex. App.—Austin Dec. 23, 2014, no
pet. h.). The facts and issues in Abbott are strikingly similar to those in the present case.
In both cases: (1) the City received a PIA request seeking documents the City believed
3 In its “Issues Presented” section of its brief, the City presents its issues as follows:
1. The trial court erred in granting judgment for the Attorney General and denying judgment
for the City.
2. The policy reasons for the lawyer-client privilege are compelling reasons to withhold all
confidential attorney-client communications from public disclosure under Texas
Government Code section 552.302.
3. The Attorney General is not entitled to an award of attorney fees under Texas Government
Code section 552.323.
We address the City’s first two issues together.
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were protected from disclosure as attorney-client communications; (2) the City sent an
untimely request for an opinion from the AG’s office as to whether the documents were
protected from disclosure; (3) the City sought to withhold the documents under sections
552.101 and 552.107(1) of the PIA; (4) the City argued that Rule of Evidence 503 and
Disciplinary Rule of Professional Conduct 1.05(b) brought the information within the
scope of sections 552.101 and 552.107; (5) the AG either did not address or rejected the
City’s claim of attorney-client privilege under section 552.101 of the PIA; and (6) the AG
concluded that (a) the City failed to comply with the deadline for requesting an AG’s
opinion, (b) section 552.107 was not a compelling reason to withhold the information from
disclosure, and (c) the City was therefore required to disclose the information. See id. at
*1–2. In Abbott, the trial court agreed with the City, concluding that the attorney-client
privilege is an inherently compelling reason to withhold disclosure. See id. at *2.
The Abbott Court first addressed the AG’s argument—also made in the present
case—that the attorney-client privilege must be raised under section 552.107(1) and
cannot be raised under section 552.101. See id. at *3. The AG argued—as he does
here—that section 552.107(1) is not a confidentiality exception, but a discretionary
exception. See id. According to the AG, confidentiality exceptions (like section 552.101)
are mandatory and cannot be waived. See id. In contrast, discretionary exceptions (like
552.107(1)) can be waived by failure to comply with the procedural requirements of the
PIA and therefore cannot, in and of themselves, constitute compelling reasons to withhold
information. See id. The Abbott Court “[did] not find the attorney general’s construction
of section 552.101 persuasive.” See id. at *4. The court noted that, in a footnote in City
of Garland, the Texas Supreme Court stated, “Section 552.101 of the Texas Public
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Information Act exempts information considered confidential by law, including information
falling under the attorney-client privilege.” Id. (citing City of Garland, 22 S.W.3d at 360
n.5) (emphasis added). The Abbott Court relied on the supreme court’s reading of section
552.101 to “conclude that the attorney-client privilege may be asserted under section
552.101.” Id. at *5. The court further relied on the supreme court’s analysis of the
meaning of “law” in construing the term “other law” in In re City of Georgetown and found
that the supreme court’s reading “further supports the analogous conclusion here that the
Rules of Evidence and the Disciplinary Rules of Professional Conduct are ‘law’ outside
the PIA within the meaning of section 552.101.” Id. (citing In re City of Georgetown, 53
S.W.3d 328, 336 (Tex. 2001)). The Abbott Court therefore “conclude[d] that section
552.101 exempts from disclosure information that is protected by the attorney-client
privilege.” Id. at *6; see also Tyler v. Paxton, No. 03-12-747-CV, 2015 WL 410281, at *5
(Tex. App.—Austin Jan. 28, 2015, no pet. h.) (mem. op.) (citing and following Abbott).
Texas Rule of Appellate Procedure 41.3 provides that in cases transferred by the
supreme court, such as the present case, the transferee court must decide the case in
accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3. “The rule
requires the transferee court to ‘stand in the shoes’ of the transferor court so that an
appellate transfer will not produce a different outcome, based on application of
substantive law, than would have resulted had the case not been transferred.” Id. cmt.
We will follow the opinion of the Austin Court of Appeals in Abbott. Accordingly, we
conclude that the attorney-client information at issue “falls within the purview of section
552.101 and that the City has demonstrated a compelling reason to withhold the
information by establishing that it is protected by the attorney-client privilege and is
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therefore excepted [from disclosure] by section 552.101[.]” See id. at *7. We sustain the
City’s first and second issues.
By its third issue, the City argues that the AG is not entitled to attorney’s fees
because he should not be a substantially prevailing party under section 552.323(b) of the
PIA. See TEX. GOV’T CODE ANN. § 552.323(b) (West, Westlaw through 2013 3d C.S.)
(providing that in a suit by a governmental body, the court may assess costs of litigation
and reasonable attorney's fees incurred by a plaintiff or defendant who substantially
prevails). We agree. Because we have found in favor of the City, the AG is not a
prevailing party and is not entitled to attorney’s fees. We sustain the City’s third issue.
IV. CONCLUSION
We reverse the trial court’s judgment and render judgment that the documents at
issue in Exhibit 1 are excepted from disclosure under section 552.101 of the PIA. See id.
§ 552.101; Abbott, 2014 WL 7466736, at *7.
DORI CONTRERAS GARZA,
Justice
Delivered and filed the
12th day of February, 2015.
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