City of Houston v. Randall Kallinen and Paul Kubosh

Opinion issued August 29, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00050-CV
———————————
CITY OF HOUSTON, Appellant
V.
RANDALL KALLINEN AND PAUL KUBOSH, Appellees

On Appeal from the 295th District Court
Harris County, Texas
Trial Court Case No. 2008-75633

OPINION

This interlocutory appeal arises from a suit for writ of mandamus brought

under the Texas Public Information Act (“TPIA”). Randall Kallinen and Paul

Kubosh (“appellees”) filed a mandamus suit against the City of Houston (“the

City”) seeking the public disclosure of various documents requested regarding the
City’s red light camera installations. After a series of rulings by the trial court, the

City filed a motion for new trial and plea to the jurisdiction. The trial court denied

the City’s plea to the jurisdiction. In two issues, the City challenges the trial

court’s orders denying its plea to the jurisdiction and awarding attorney’s fees to

appellees. We reverse and render.

Background

In November and December 2008, Kallinen made four requests under the

TPIA for release of information regarding a commissioned study on traffic light

cameras in Houston. The City released some of the documents but withheld others

based upon disclosure exceptions under the Act. The City also requested a

decision from the Attorney General regarding whether the TPIA exceptions

applied. Before the Attorney General had issued a decision, appellees filed suit in

district court on December 26, 2008, seeking a writ of mandamus under the TPIA.1

Appellees then requested that the Attorney General refrain from making a

determination because the issue was a subject of ongoing litigation. The Attorney

General did subsequently decline to issue an opinion in order to allow the trial

court to decide whether the withheld documents were excepted from disclosure

under the TPIA.

1
Appellees also filed a declaratory judgment under the Texas Declaratory Judgment
Act (“TDJA”), seeking a declaration that disclosure was required. See TEX. CIV.
PRAC. & REM. CODE ANN. § 37.002(b) (West 2008).
2
 On September 14, 2009, appellees filed a motion for partial summary

judgment seeking a ruling as to whether the TPIA’s exceptions applied to the

withheld documents. On October 12, 2009, the trial court granted in part, and

denied in part, appellees’ summary judgment motion, and ordered the City to

disclose some of the withheld documents. On November 16, 2009, appellees filed

a motion for entry of judgment and award of attorney’s fees and, following a

hearing on appellees’ attorney’s fee claim, the trial court issued a final judgment

on October 12, 2011, reiterating its October 12, 2009 ruling and awarding

appellees $95,664 jointly in attorney’s fees.

On November 10, 2011, the City filed a motion for new trial and plea to the

jurisdiction. On January 5, 2012, the trial court granted the City’s motion for new

trial as to attorney’s fees for Kubosh and denied the City’s plea to the jurisdiction.

On July 12, 2012, the trial court entered a modified final judgment ruling that

Kubosh was without standing and awarding him no attorney’s fees.

Standard of Review

A plea to the jurisdiction challenges the trial court’s subject matter

jurisdiction which is essential to the authority of a court to decide a case. See

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). A plea

challenging a trial court’s jurisdiction is a question of law that is reviewed de novo.

See City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010).

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 The construction of a statute, too, is a question of law which is reviewed de

novo. See Atmos Energy Corp. v. Cities of Allen, 353 S.W.3d 156, 160 (Tex.

2011). The purpose of interpretation is to arrive at the legislature’s intent in

creating the statute. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680,

683 (Tex. 2007). In discerning legislative intent, we consider the plain and

common meaning of the statutory language. See McIntyre v. Ramirez, 109 S.W.3d

741, 745 (Tex. 2003). The statute must be read as a whole, giving effect to all—

not just isolated—portions. See City of San Antonio v. City of Boerne, 111 S.W.3d

22, 25 (Tex. 2003). Courts also consider the objective the law seeks to obtain. See

TEX. GOV’T CODE § 311.023(1) (West 2005).

Discussion

In its first issue, the City contends that the trial court erred in denying its

plea to the jurisdiction because, among other reasons, the Attorney General

declined to perform his statutory duty to issue a decision on the City’s request.

Appellees argue that they have a statutory right to file a suit for writ of mandamus

against the City because the City refused to release public information.

A. Applicable Law

The TPIA governs public disclosure of information about the affairs of the

government and the official acts of public officials and employees, and it requires

the officer for public information of a governmental body to produce public

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information for inspection or copying on application by any person to the officer.

See TEX. GOV’T CODE ANN. §§ 552.001, .203, .221(a) (West 2012). A “requestor”

is defined as “a person who submits a request to a governmental body for

inspection or copies of public information.” Id. § 552.003(6).

The TPIA also lists numerous exceptions from required disclosure. See id.

§§ 552.101–.153. Though the act is to be liberally construed in favor of granting

requests for information, id. § 552.001(b), a governmental body may seek to

withhold requested information that it believes falls within one of the statutory

exceptions to disclosure. See id. §§ 552.101–.153. To do so, the government body

must timely request an Attorney General determination (if there has not been a

previous determination) and assert which exceptions to disclosure apply to the

information requested. Id. § 552.301. The TPIA provides that “the attorney

general shall promptly render a decision requested . . . determining whether the

requested information is within one of the exceptions . . . .” Id. § 552.306(a).

However, the governmental body may disclose the requested information to the

public or to the requestor before the Attorney General—or, if suit is filed under the

TPIA, the court with jurisdiction—makes a final determination that the requested

information is public, except if the requested information is confidential by law.

See id. § 552.303(a).

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 The TPIA also provides that the Attorney General and the original requestor

may file suit for a writ of mandamus to compel a governmental body to release

information to the public “if the governmental body refuses to request an attorney

general’s decision . . . or refuses to supply public information or information that

the attorney general has determined is public information.” Id. § 552.32(a). If a

governmental body does not request an Attorney General decision after receiving a

written request for information, the requested information is presumed to be

subject to required public disclosure and must be released unless there is a

compelling reason to withhold it. See id. § 552.302. Further, the TPIA also

provides that the only exceptions to required disclosure that the governmental body

may raise in such a suit are those that it properly raised before the Attorney

General to support its request for a decision as to whether disclosure is required.

See id. § 552.326(a).

B. Analysis

The issue before us is whether the TPIA allows a requestor to sue for a writ

of mandamus prior to the Attorney General issuing a decision when the

governmental body has requested one. The City contends that the TPIA requires

the Attorney General to render a decision before a mandamus suit may be filed.

Appellees argue that no such requirement has been or should be read into the

TPIA.

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 As previously noted, section 552.321(a) sets out three scenarios under which

the Attorney General or a requestor may file a mandamus suit. First, if a

governmental body fails to request an Attorney General decision in the time

permitted, the information is presumed to be open to public disclosure, and the

governmental body must release the information. See id. § 552.321(a). If it fails to

do so, the requestor may file suit for a writ of mandamus. See id. Second, if the

Attorney General has rendered a decision and the governmental body has failed to

comply with the decision, the Attorney General or the requestor may then file suit.

See id. Finally, either the Attorney General or the requestor may file suit, if the

governmental body “refuses to supply public information.” Id.

Appellees argue that the third scenario applies here. That is, they argue that

the City refused to release public information and they were therefore entitled to

file a mandamus suit. In support of their argument, appellees point out that the

legislature did not qualify the word “refuse” by including exceptions for cases in

which the government body has requested an Attorney General ruling. 2 That

2
Appellees rely on Thomas v. Cornyn, 71 S.W.3d 473, 486 (Tex. App.—Austin
2002, no pet.) (noting that mandamus statute “does not qualify the word ‘refuse’
by including an exception for cases in which the governing body has filed a suit
against the attorney general under the Act, and we will not read such an exception
into the statute.”). That reliance is misplaced. In Thomas, the Attorney General
had already rendered a decision on the nature of the information. According to
section 552.324(a)(2), a governmental body may sue for declaratory relief from
compliance with an already issued decision by the Attorney General. The Thomas
court correctly determined that the suit for writ of mandamus filed after the
Attorney General decision and before the suit for declaratory relief had been
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reading, however, is unpersuasive. Though the term “refuse” is not qualified, the

term “information” is. See id. § 552.321(a) (permitting suit for writ of mandamus

where “governmental body refuses to supply public information”) (emphasis

added). Because the TPIA carves out numerous exceptions to disclosure of certain

types of information and establishes procedures to determine whether information

falls under those exceptions, it is illogical to presume that information is public

while its very status is being challenged. Additionally, considering that the statute

explicitly states when information is presumed to be public—i.e., if the

governmental body has not made an Attorney General request—it does not stand to

reason that information should be considered public when a request has been made.

Not only does the statute clearly provide when a mandamus suit may be

filed, but it is equally clear that the Attorney General must render a decision on the

nature of the information in question. The City contends that the TPIA is a

comprehensive regulatory scheme under which the Attorney General must issue a

decision before a mandamus suit may be filed.3 It argues that because the Attorney

decided was a valid one, pointing to the relevant provision in 552.325(a) allowing
a requestor to intervene in such suits. The language that appellees cite from
Thomas is clearly applicable only to fact patterns involving governmental bodies’
suits against the Attorney General, not for suits for writ of mandamus prior to an
Attorney General ruling.
3
An agency has exclusive jurisdiction when it is clear that the legislature instituted
a pervasive regulatory scheme meant to be the exclusive means of remedying
certain problems targeted by the legislation. See Subaru of America, Inc. v. David
McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). If an agency has
8
General did not issue a decision in this case before appellees filed their suit, the

jurisdictional prerequisite for filing suit under section 552.321 was not met.

Appellees, citing past Attorney General decisions, contend that the Attorney

General may—indeed, must in this case—defer to courts’ decisions when certain

issues are being litigated.

The Attorney General, however, has already weighed in on this debate:

Open Records Decision No. 687 concludes that “in accordance with its

legislatively[] mandated function, the Attorney General has a statutory directive to

rule on a PIA disclosure question in the first instance in advance of judicial

review.” Tex. Att’y Gen. OR2011-687. After acknowledging the previous agency

decisions cited by appellees in which the agency had declined to issue an opinion

when that same question was pending before a court, the Attorney General ruled

that “this litigation policy is withdrawn and is no longer applicable to the PIA

ruling process.” Id.

This decision is significant in several ways. First, it notes that the Attorney

General may not refuse to fulfill his duty to render open records decisions. See

Hous. Chronicle Publ’g Co. v. Mattox, 767 S.W.2d 695, 698 (Tex. 1989). Second,

exclusive jurisdiction, a party must exhaust all administrative avenues before
asking for judicial review of the agency’s action. Cash Am. Int’l Inc. v. Bennett,
35 S.W.3d 12, 15 (Tex. 1999). Otherwise, a trial court lacks subject matter
jurisdiction and must dismiss the claims within the agency’s exclusive jurisdiction.
See Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90
(Tex. 1992).

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it points out the 1999 revisions to the TPIA, which expanded the scope of the

Attorney General’s role. In particular, the decision highlights the addition of

section 552.011, which charges the Attorney General with “maintain[ing]

uniformity in the application, operation, and interpretation of this chapter.” The

decision then concludes that the detailed statutory scheme under which the

Attorney General’s open records ruling process operates, as well as the lack of any

language affirmatively directing the Attorney General to decline to issue an open

records ruling for the benefit of the public, demonstrate that such Attorney General

decisions are, indeed, mandatory. Finally, Open Records Decision No. 687 offers

insights into the policy considerations underpinning the Attorney General’s

expanded role under the statute. Vesting the Attorney General with the role of

evaluating requests by governmental bodies to withhold putatively excepted

information is both more efficient, avoiding the expense of court action, and more

democratic, allowing Texans equal access to information regardless of their ability

to secure legal representation. The decision concludes by stating that “there is

little to commend a rule that would avoid ruling on a pending question where the

Attorney General has not previously spoken.” Tex. Att’y Gen. OR2011-687.

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 We agree with the Attorney General’s interpretation. 4 The TPIA is a

comprehensive statutory scheme under which “the Attorney General [is] the first

arbiter of openness before Texans can be denied access to their government’s

records.” See Tex. Att’y Gen. OR2011-687 (noting that, in enacting TPIA,

legislature “set[] out a detailed statutory scheme . . . which . . . evidences [its]

intention that the Attorney General play a critical, quasi-judicial role when a

governmental body wishes to avoid releasing information requested pursuant to the

PIA.”); see also Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P., 343

S.W.3d 112, 121 (Tex. 2011) (Wainwright, J., concurring) (describing TPIA as

“comprehensive scheme arming the public with statutory mandates for the

government to disclose information . . . .”). Although district courts have subject

matter jurisdiction under the TPIA, that jurisdiction only arises after the Attorney

General has ruled. See TEX. GOV’T CODE ANN. § 552.321(a).

Appellees filed suit for writ of mandamus before the Attorney General

issued a ruling on the information that the City sought to withhold. Because

4
Although not binding authority on appellate courts, we give due consideration to
the Attorney General on questions involving the TPIA. See Holmes v. Morales,
924 S.W.2d 920, 924 (Tex. 1996) (explaining that Attorney General opinions are
“persuasive but not controlling” authority); City of Lubbock v. Cornyn, 993
S.W.2d 461, 463 (Tex. App.—Austin 1999, no pet.) (recognizing due
consideration to be given Attorney General decisions especially in cases involving
TPIA); City of Hous. v. Hous. Chronicle Publ’g Co., 673 S.W.2d 316, 322 (Tex.
App.—Houston [1st Dist.] 1984, no writ) (“While opinions of the Attorney
General are not binding upon the courts, they should be given great weight.”).
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appellees failed to exhaust their administrative remedies before doing so, the trial

court lacked subject matter jurisdiction over their mandamus suit. As such, the

trial court erred in denying the City’s plea to the jurisdiction. We sustain the

City’s first issue.

Conclusion

We reverse the trial court’s order denying the City’s plea to the jurisdiction

and render judgment that appellees’ claims against the City are dismissed for want

of jurisdiction.

Jim Sharp
Justice

Panel consists of Justices Bland, Sharp, and Massengale.

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