Patricia A. Grant, Ph.D. v. Texas State Attorney General, Open Government Records Division And Texas Health and Human Services Department of Aging and Disability Services – Office of the Long-Term Care Ombudsman Program Open Records Division

Affirmed in Part; Reversed in Part; Remanded; and Memorandum Opinion
filed December 17, 2019.

In The

Fourteenth Court of Appeals

NO. 14-18-00677-CV

PATRICIA A. GRANT, PH.D., Appellant
V.

TEXAS STATE ATTORNEY GENERAL, OPEN GOVERNMENT
RECORDS DIVISION; AND TEXAS HEALTH AND HUMAN SERVICES
DEPARTMENT OF AGING AND DISABILITY SERVICES – OFFICE OF
THE LONG-TERM CARE OMBUDSMAN PROGRAM OPEN RECORDS
DIVISION, Appellees

On Appeal from the 53rd District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-18-002178

MEMORANDUM OPINION

Plaintiff Patricia A. Grant appeals from the district court’s order granting the
plea to the jurisdiction and the motion to dismiss filed by the defendants the Office
of the Attorney General of Texas (“the OAG”) and the Texas Health and Human
Services Commission (“HHSC”; collectively, “the Agencies”).1 We agree with
Grant that the Texas Public Information Act grants her standing to pursue, and
waives the Agencies’ sovereign immunity from, her claims for declaratory and
injunctive relief for the Act’s violation. We therefore reverse the dismissal of Grant’s
requests for declaratory and injunctive relief for the Agencies’ alleged violations of
the Texas Public Information Act. Grant has not challenged the portion of the
judgment granting the motion to dismiss as it pertains to her claims that the Agencies
are complicit in elder abuse and in civil-rights violations; thus, we leave that part of
the judgment intact. In all other respects, we affirm the trial court’s judgment, and
we remand for further proceedings consistent with this opinion.

I. BACKGROUND

Appellant Patricia A. Grant sued the Agencies based on their failure to
produce certain documents in response to her open-records requests under the Texas
Public Information Act (“the Act”). She also pleaded that the Agencies’ alleged
violations of the Act make them complicit in elder abuse and “family advocate civil
rights law violations.” Pursuant to the Act, she pleaded for unspecified injunctive
relief, for a declaration that the Agencies have violated the Act, and for a writ of
mandamus compelling the Agencies to produce certain documents. Grant further
pleaded for various other declarations of her rights under unidentified provisions of
the state’s constitution and laws. In addition, she asked the trial court to intervene to
remedy or prevent elder abuse, “hostile nursing facility environments,” manipulation
and coercion of elderly residents of nursing homes, medical negligence, “elderly fear
of police involvement,” “failed ombudsman nursing facility residency civil rights

1
Despite the style of the case, the defendants are the OAG and HHSC, not specific
departments, offices, or divisions within those agencies.

2
protection,” and continuing endangerment of a nursing-facility resident’s health and
well-being.

Of the claims Grant pleaded in the trial court, she challenges on appeal only
the dismissal of her claims for declaratory and injunctive relief for the Agencies’
alleged violation of the Act. We therefore describe her factual allegations only as to
those claims.

A. Grant’s Claims Against the OAG

Grant alleges that she requested information from the Department of Family
& Protective Services (“DFPS”) related to certain elder-abuse complaints, which she
identified by complaint number, case number, or by the identity of the alleged victim
or perpetrator. Her records request was denied. According to Grant, the OAG
unconstitutionally granted DFPS “a waiver of plaintiff’s release of information
waiver request” and failed to reply to her “rebuttal letter.” She contends that the
OAG’s failure to revoke the waiver violates the Act.

B. Grant’s Claims Against HHSC

Grant similarly alleges that HHSC violated the Act. She alleges that she made
open-records requests to HHSC’s predecessor2 in June and September of 2015, but
she does not identify the documents she requested. She asserts that HHSC finally
responded on March 16, 2016, “without [an OAG] waiver, requested documents, or
cost quotes.” She seeks an order compelling HHSC to produce “all 61 pages as
handwritten on an envelope enclosed with defendant’s March 16, 2016 letter.” She

2
Grant directed these requests to the Department of Aging and Disability Services, but
before this suit was filed, the legislature transferred that department’s functions to the Health and
Human Services Commission and abolished the Department. See TEX. GOV’T CODE ANN.
§§ 531.02001–.0207. As the Department’s successor, HHSC answered the claims that might
otherwise have been directed to DADS. To avoid confusion, we include the former Department of
Aging and Disability Services in our references to HHSC.

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also asked the trial court to require HHSC to produce to Grant “any [and] all
Ombudsman information,” including investigations, incident reports, and
complaints, together with “any and all other court admissible information not listed,
as the information pertain[s] directly or indirectly to” a particular nursing-home
resident.

C. The Agencies’ Response

The Agencies filed a plea to the jurisdiction combined with a motion to
dismiss under Texas Rule of Civil Procedure 91a. They argued in their plea to the
jurisdiction that (1) Grant lacks standing to assert claims on behalf of a third party,
(2) the Agencies have sovereign immunity from suit and from monetary damages,3
(3) Grant’s requests for information under the Texas Public Information Act are
considered withdrawn as a matter of law, and (4) a claim under the Uniform
Declaratory Judgments Act does not confer jurisdiction on the trial court. The
Agencies moved to dismiss under Texas Rule of Civil Procedure 91a on the grounds
that (1) they have sovereign immunity from suit; and (2) Grant alleged “complicit
ongoing elder abuse and advocate civil rights violations” but “allege[d] too few facts
to demonstrate a viable, legally cognizable right to relief.” The trial court granted
both the plea and the motion and dismissed Grant’s claims with prejudice.

In her first two issues, Grant contends that she has standing to sue under the
Texas Public Information Act, which also waives the Agencies’ immunity from suit
for declaratory and injunctive relief for violating the Act. Grant’s five remaining
issues concern matters that are not properly before us.

II. GRANT HAS NOT ABANDONED HER APPEAL

3
Grant did not plead for monetary damages, but in her response to the Agencies’ plea to
the jurisdiction, she asserted that she is entitled to compensatory and punitive damages.

4
 As a threshold issue, the Agencies assert that Grant has abandoned her appeal
by failing to address the grounds on which the district court dismissed her claims.
According to the Agencies, these grounds are that (1) Grant lacks standing, (2) the
Agencies have sovereign immunity from suit, and (3) the records sought are
confidential.

The Agencies are mistaken. Grant addresses standing and sovereign immunity
in her appellate brief, and the allegedly confidential nature of the records she seeks
are not at issue in this appeal for two reasons.

First, confidentiality of the records is not jurisdictional. The Agencies
themselves characterize confidentiality as a “defense” to the failure to disclose.4
Confidentiality is relevant to the merits of Grant’s claims that the Agencies have
violated the Texas Public Information Act, and because “[t]he purpose of a plea to
the jurisdiction is to ‘defeat a cause of action without regard to whether the claims
asserted have merit,’”5 the Agencies appropriately did not raise this merits argument
in their plea to the jurisdiction.

4
More accurately, confidentiality is a reason to withhold information from the general
public. Nevertheless, some confidential information is available to certain requestors based on the
procedural history of the request or the requestor’s connection to the information sought. See, e.g.,
TEX. GOV’T CODE ANN.§ 552.302 (absent a timely request for an OAG opinion that the requested
information may be withheld, the information is presumed to be public and must be released absent
a compelling reason to withhold it); id. § 552.023(a) (a person has a special right of access to
information related to that person, even though laws intended to protect that person’s privacy
interests protect the information from public disclosure); id. § 552.307 (if the person has a special
right of access, the governmental body must either release the information within ten business days
or request an OAG opinion that the information is exempt from disclosure); 40 TEX. ADMIN. CODE
§ 705.7107(1)(A), (3), (4) (after appropriate redactions, certain Adult Protective Services case
records requested in writing must be made available to specific requestors, which may include a
living adult APS client, a person interviewed as part of an APS investigation, or an alleged or
designated perpetrator of abuse, neglect, or exploitation of an APS client).
5
Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512 (Tex. 2019)
(quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).

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 Second, although certain merits arguments could be addressed through a
motion to dismiss under Rule 91a, the Agencies did not move for dismissal on the
grounds that Grant sought confidential records. To the contrary, they challenged
Grant’s claims under the Act only on the jurisdictional ground of sovereign
immunity. The remainder of the Agencies’ motion to dismiss was directed to Grant’s
claims of “complicit ongoing elder abuse and advocate civil rights violations,” and
the Agencies challenged those claims on the ground that Grant “alleges too few facts
to demonstrate a viable, legally cognizable right to relief.” Confidentiality was never
mentioned, and the Agencies could not raise a new ground at the hearing. See TEX.
R. CIV. P. 91a.2 (“A motion to dismiss . . . must state specifically the reasons the
cause of action has no basis in law, no basis in fact, or both.”). Further, the trial
court’s judgment indicates that it did not consider the Agencies’ assertions at the
hearing that the records requested from DFPS are confidential.6 The trial court
instead stated in the judgment, “After due consideration of the law and the filings of
parties, the Court finds said motion meritorious.” The record therefore does not show
that the trial court erroneously treated the confidentiality argument as jurisdictional
or considered arguments raised for the first time at the hearing on the motion to
dismiss.

III. GRANT’S APPEAL AS TO HHSC IS NOT MOOT

The Agencies also imply that Grant’s appeal of the dismissal of her claims
against HHSC under the Act are moot. See Kessling v. Friendswood Indep. Sch.
Dist., 302 S.W.3d 373, 384 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)
(claims regarding fulfilled record requests are moot). They state that “from [Grant’s]

6
The Agencies did not contend that the records requested from HHSC—which were not
described—are confidential.

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argument it seems she received the documents requested from HHSC . . . . To the
extent she is requesting documents, it appears she already has them.”

There is no support for this inference. Grant refers in her brief to the
government records that she “diligent[ly] and persistently seeks” and to her
“continuously denied government records requests.” Although we are free to
consider evidence outside the record showing that we lack jurisdiction over this part
of the appeal due to mootness,7 HHSC has offered none. We therefore consider
Grant’s appeal on the merits.

IV. THE PLEA TO THE JURISDICTION

We review de novo the trial court’s grant of a plea to the jurisdiction. See
Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019).
We first look to the pleadings to determine if the pleader has alleged facts that
affirmatively demonstrate the court’s jurisdiction to hear the cause. See Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the
pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept
as true the factual allegations in the pleadings. Id. If the issue is one of pleading
sufficiency, the plaintiff should be afforded the opportunity to amend unless the
pleadings affirmatively negate jurisdiction. Id. at 227.

The Agencies challenged only Grant’s pleadings, arguing in their plea to the
jurisdiction that (a) Grant lacks standing to assert claims on behalf of another, (b) the
Agencies have sovereign immunity from suit and for claims for monetary damages,
(c) Grant’s requests for information under the Act are considered withdrawn as a
matter of law, and (d) a claim under the Uniform Declaratory Judgments Act does
not confer jurisdiction on the trial court. We address each ground in turn.

7
See TEX. GOV’T CODE ANN. § 22.220(c).

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A. Grant Has Standing to Assert Statutory Claims Under the Act.

To sufficiently plead standing, a plaintiff must allege that (1) the plaintiff has
suffered a personal injury, (2) the injury is fairly traceable to the defendant’s
unlawful conduct, and (3) the injury is likely to be redressed by the requested relief.
See Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012). The Agencies
argue that Grant’s tort claims lack either the first or second element of standing, and
thus, her claims also are not redressable.

Regarding Grant’s tort claims, the Agencies are correct. To meet the injury
requirement, the plaintiff must plead facts demonstrating that the plaintiff, rather
than a third party or the public at large, suffered the injury. Id. at 155 (citing S. Tex.
Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007) (per curiam)). As the
Agencies point out, Grant lacks standing to bring claims of elder abuse, because she
alleges the abuse was suffered by a third party. Regarding the element of traceability,
the Agencies contend that Grant’s claims of retaliation are not fairly traceable to her
records requests. We agree with both of those arguments. We further agree that
because Grant cannot establish that she personally suffered elder abuse or retaliation
as a result of the Agencies’ denial of her record requests, those claims are not likely
to be redressed by the declaratory and injunctive relief Grant requests. Grant does
not contend otherwise.

But, as Grant correctly points out, the same is not true of her claims under the
Texas Public Information Act. Her claims that the Agencies violated the Act by
failing to make the information she requested available are claims that she, as the
person requesting the information, is the injured party. Her claimed injury is lack of
access to the information she seeks, and that injury is fairly traceable to the
Agencies’ alleged violation of the Act. Finally, that injury is redressable. See TEX.

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GOV’T CODE ANN. § 552.3215 (declaratory and injunctive relief available to a person
claiming to be the victim of the Act’s violation).

Because Grant has standing to pursue declaratory and injunctive relief for the
Agencies’ alleged violations of the Act, we sustain her first issue as to those claims.

B. The Legislature Waived the Agencies’ Immunity from Suits for
Declaratory and Injunctive Relief Under the Act.
Unless waived, sovereign immunity protects the State of Texas and its
agencies from suit and liability. Chambers-Liberty Ctys. Navigation Dist., 575
S.W.3d at 344. Because sovereign immunity implicates jurisdiction, it can be
asserted in a plea to the jurisdiction. Id. at 345.

The legislature has waived certain governmental bodies’ sovereign and
governmental immunity from suits for declaratory and injunctive relief for violations
of the Texas Public Information Act. See TEX. GOV’T CODE ANN. § 552.3215; see
also Travis v. Tex. Dep’t of Pub. Safety, No. 03-14-00314-CV, 2016 WL 4429931,
*2 (Tex. App.—Austin Aug. 18, 2016, pet. denied) (mem. op.) (suit for declaratory
relief challenging an OAG ruling on an open-records request). In her petition, Grant
specifically pleaded, “Pursuant to GOV’T 5 Sec. 552.3215,8 plaintiff seeks
declaratory judgment and injunctive relief.” Neither at trial nor on appeal have the
Agencies disputed that section 552.3215 waives their immunity from suit for this
relief.

We sustain Grant’s second issue as to her requests for declaratory and
injunctive relief for the Agencies’ alleged violations of the Act.

8
Grant defined “GOV’T” to mean “Texas Government Code Title.” Section 552.3215 is
found in Title 5 of the Texas Government Code.

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C. Grant Did Not Withdraw Her Records Requests.

In their plea to the jurisdiction, the Agencies asserted that Grant’s open-
records requests must be deemed withdrawn as a matter of law because she “does
not elaborate on the status of the requests.” As support for this assertion, the
Agencies cited Texas Government Code section 552.2615(b).

Section 552.2615 provides that if a person requesting a copy of public
information will be charged more than $40, the responding agency must provide the
requestor with a written itemized statement of the estimated charges. Subsection (b)
states that the request is considered withdrawn if the requestor does not respond in
writing to the itemized statement within ten business days. Id.

Although the parties have not explicitly briefed this ground on appeal, we
must treat appellate issues “as covering every subsidiary question that is fairly
included,”9 and on appeal, Grant characterizes her records requests as “continuously
denied.” Grant similarly stated in her pleading that she sought “legal relief
from . . . denials of formal [open-records] requests.” This necessarily implies that
the Agencies did not provide her with an itemized statement of the charges for
granting the requests. Regarding HHSC, Grant further pleaded that HHSC responded
without “requested documents, or cost quotes.”

By such statements, Grant sufficiently alleged that the Agencies denied her
records requests, and these uncontroverted factual allegations must be treated as true.
Because the Agencies produced no evidence that Grant failed to timely respond to
an itemized statement of costs, the trial court could not properly have granted the
Agencies’ plea to the jurisdiction on the ground that Grant’s records requests are
deemed withdrawn under Texas Government Code section 552.2615(b).

9
TEX. R. APP. P. 38.1(g).

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D. We Need Not Address Jurisdiction Under the UDJA.

In its last jurisdictional argument in the trial court, the Agencies asserted that
the Uniform Declaratory Judgments Act (“UDJA”)10 does not confer jurisdiction on
the trial court.11 Because Grant has successfully established that the trial court has
jurisdiction over her claims for declaratory relief under section 552.3215, it is
unnecessary to consider whether another statute independently confers the same
jurisdiction.

V. THE RULE 91A MOTION TO DISMISS

Under Texas Rule of Civil Procedure 91a, “a party may move to dismiss a
cause of action on the grounds that it has no basis in law or fact.” TEX. R. CIV. P.
91a.1. As specified in the rule, a cause of action has no basis in law if the allegations,
taken as true, together with inferences reasonably drawn from them, do not entitle
the claimant to the relief sought. Id. A cause of action has no basis in fact if “no
reasonable person could believe the facts pleaded.” Id. We review the ruling on a
Rule 91a motion de novo. AC Interests, L.P. v. Tex. Comm’n on Envtl. Quality, 543
S.W.3d 703, 706 (Tex. 2018). The Agencies moved for dismissal under Rule 91a on
only two grounds.

First, the Agencies asserted sovereign immunity from suit on all of Grant’s
claims. For the reasons previously addressed, we reject that argument as to Grant’s
claims for a declaratory and injunctive relief under the Act.

10
TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011.
11
But see Kessling, 302 S.W.3d at 382–83 (a person seeking information under the Texas
Public Information Act “could seek relief from a governmental entity’s refusal to produce
information by directly filing a declaratory judgment action under the UDJA against the entity”
(citing City of Garland v. Dall. Morning News, 22 S.W.3d 351, 357–58 (Tex. 2000) and
Dominguez v. Gilbert, 48 S.W.3d 789, 796 (Tex. App.—Austin 2001, no pet.))).

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 Second, the Agencies stated that, as to Grant’s claims that they are complicit
in ongoing elder abuse and civil rights violations, Grant “allege[d] too few facts to
demonstrate a viable, legally cognizable right to relief.” Grant does not challenge
the portion of the trial court’s judgment dismissing her claims of elder abuse and
civil rights violations.

We accordingly reverse the portion of the judgment granting the Agencies’
motion to dismiss on the grounds of sovereign immunity as to Grant’s claims for
declaratory and injunctive relief under the Act, and we leave intact the unchallenged
portion of the judgment granting the motion to dismiss Grant’s claims of complicity
in elder abuse and in civil-rights violations.

VI. GRANT’S REMAINING ISSUES

Grant’s remaining issues concern matters over which we have no jurisdiction
or that have been waived.

Her third and fourth issues concern claims Grant raised in federal lawsuits
under the Americans with Disabilities Act (“ADA”).12 She identifies her third issue
as “Whether Code 552 State and State Agencies have Sovereign Immunity, under
the American Disability Act (‘ADA’),”13 and her fourth issue as “Whether
Individuals Covered Under ADA are Denied Abuse Reporting in Texas and Texas
State Agencies.” There are no ADA claims in this case; those complaints instead

12
See Grant v. Seabron, Civil No. SA-15-CA-964-RP689, 2015 WL 13546621 (W.D. Tex.
Nov. 10, 2015) (magistrate judge’s report and recommendation), report and recommendation
adopted, 2016 WL 9455621 (Jan. 25, 2016), aff’d, Fed. Appx. 288 (5th Cir. 2017) (per curiam);
Grant v. Alperovich, 703 Fed. Appx. 556, 557 (9th Cir. 2017), cert. denied, 139 S. Ct. 179, 202 L.
Ed. 2d 110 (2018); Grant v. White, 703 Fed. Appx. 523 (9th Cir. 2017), cert. denied, 139 S. Ct.
164, 202 L. Ed. 2d 101 (2018).
13
The Texas Public Information Act is codified as Chapter 552 of the Texas Government
Code. See TEX. GOV’T CODE ANN. §§ 552.001–.353. Grant refers to the Act as “Chapter 552” or
“Code 552.”

12
were raised in one or more of Grant’s federal suits. Although those proceedings have
no bearing on this case, the Agencies attached to their combined plea/motion to
dismiss a copy of the magistrate’s report from one of those federal cases, and the
report referred to Grant’s two other federal lawsuits.14 Grant mistakenly concluded
that by attaching the report to the plea, the Agencies had “expand[ed] the scope of
this lawsuit” to incorporate her “Federal Mental and Behavioral Health American
Disability Act (‘ADA’) Grant v. Seabron, et.al. rulings.” The federal courts have
ruled on Grant’s ADA claims, and we lack jurisdiction to review those rulings. We
therefore dismiss Grant’s third and fourth issues for want of jurisdiction.

In her fifth issue, Grant asks, “Whether a culture of In Forma Pauperis and/or
pro se litigant Confirmation Biasness and/or Systemic Discrimination is part of the
judicial culture of the state Attorney General’s Office, Travis and Judge’s rulings.”
This is a request for an advisory opinion which we lack jurisdiction to render. See
Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam)
(citing TEX. CONST. art. II, § 1). We accordingly dismiss this issue as well.

Grant phrases her sixth issue, “Whether conflict of interest, abuse of
discretion, and other actions between the Appellees, and district court warrant fines
and sanctions.” She similarly asks in her seventh issue, “Whether Sanctions
Warranted for Overt Abuse of Authority and Questions of Unethical Procedural and
Judicial Practices.” No rulings reviewable for abuse of discretion have been
challenged on appeal, and none of Grant’s remaining complaints were preserved in
the trial court. See TEX. R. APP. P. 33.1(a), 38.1(i). Thus, her sixth and seventh issues
are waived.

14
See Seabron, 2015 WL 13546621, at *1 n.4.

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 VII. CONCLUSION

Grant sufficiently alleged facts showing that she has standing to sue for
declaratory and injunctive relief for the Agencies’ alleged violations of the Texas
Public Information Act. Because the legislature waived the Agencies’ sovereign
immunity as to these claims, we reverse the portion of the trial court’s judgment
dismissing these claims. See TEX. R. APP. P. 44.1(b). We leave intact the
unchallenged portion of the judgment granting the motion to dismiss as it pertains
to Grant’s claims that the Agencies are complicit in elder abuse and in civil-rights
violations. We affirm the remainder of the trial court’s judgment, and we remand the
case for further proceedings consistent with this opinion.

/s/ Tracy Christopher
Justice

Panel consists of Justices Christopher, Spain, and Poissant.

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