Houston Community College v. the Hall Law Group, PLLC and Dolcefino Consulting and Scott Laha ( 2021 )

Opinion issued June 10, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NOS. 01-20-00673-CV
01-20-00689-CV
01-20-00690-CV
01-20-00691-CV
01-20-00692-CV
01-20-00693-CV
01-20-00694-CV
01-20-00695-CV
———————————
HOUSTON COMMUNITY COLLEGE, Appellant
V.
THE HALL LAW GROUP, PLLC, DOLCEFINO CONSULTING,
AND SCOTT LAHA, Appellees
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Case Nos. 2020-31380, 2020-31380A, 2020-31380B, 2020-31380C,
2020-31380D, 2020-31380E, 2020-31380F, 2020-31380G
MEMORANDUM OPINION
Appellees, The Hall Law Group, PLLC (“Hall”), Dolcefino Consulting
(“Dolcefino”), and Scott Laha submitted various requests to appellant, Houston
Community College (“HCC”), for public information, pursuant to the Texas Public
Information Act (“TPIA”).1 Asserting that HCC refused to release the requested
information, appellees sought writs of mandamus to compel HCC to comply with
their requests.2 HCC filed a plea to the jurisdiction, arguing that the trial court lacked
subject matter jurisdiction over appellees’ claims because HCC is a governmental
body and that appellees failed to establish a waiver of governmental immunity under
the TPIA, i.e., that HCC had “refused” to act. The trial court found that HCC had
failed to comply with the TPIA, including provisions governing the suspension of
deadlines during an epidemic,3 and that such failure constituted a refusal to release
public information under the TPIA. The trial court denied HCC’s plea to the
jurisdiction and granted mandamus relief, ordering that HCC provide all public
1
See TEX. GOV’T CODE § 552.001–.376.
2
See id. § 552.321(a) (authorizing requestor to file suit for mandamus against
governmental body that refuses to release public information).
3
See Act of May 17, 2019, 86th Leg., R.S., ch. 462, § 4, 2019 Tex. Gen. Laws 865,
866, amended by Act of May 11, 2021, 87th Leg., R.S., ch. 164, § 1 (S.B. 1225)
(current version at TEX. GOV’T CODE § 552.233, “Temporary Suspension of
Requirements for Governmental Body Impacted by Catastrophe”). Because the
requests at issue were received, and this action was filed, prior to September 1, 2021,
the effective date of the amendments, we apply the current version of the statute.
2
information responsive to appellees’ TPIA requests. The trial court granted
appellees’ motions to sever their requests into separate writs.4
In its sole issue in this interlocutory appeal,5 HCC contends that the trial court
erred in denying its plea to the jurisdiction.
We affirm.
Background
In its plea to the jurisdiction, HCC stated that, on December 11, 2019, Hall
served it with a request for public information under the TPIA, seeking seven
categories of documents pertaining to HCC’s Chief Human Resources Officer, Janet
May (“May”).6 On December 18, 2019, HCC acknowledged receipt of the request
and sought clarification. On January 2, 2020, Hall responded with another TPIA
4
Trial court case no. 2020-31380 is appellate cause no. 01-20-00673-CV.
Trial court case no. 2020-31380A is appellate cause no. 01-20-00689-CV.
Trial court case no. 2020-31380B is appellate cause no. 01-20-00690-CV.
Trial court case no. 2020-31380C is appellate cause no. 01-20-00691-CV.
Trial court case no. 2020-31380D is appellate cause no. 01-20-00692-CV.
Trial court case no. 2020-31380E is appellate cause no. 01-20-00693-CV.
Trial court case no. 2020-31380F is appellate cause no. 01-20-00694-CV.
Trial court case no. 2020-31380G is appellate cause no. 01-20-00695-CV.
5
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8).
6
The precise nature of the requests is not pertinent to this appeal. Generally, the
requests sought documents regarding May’s job duties and work schedule;
complaints filed against her or relating to her; documents authorizing her to perform
services on behalf of The Harris Center for Mental Health and IDD (“The Harris
Center”); and documents regarding the number of African Americans she had
recommended or approved for termination.
3
request, seeking seven new categories of documents.7 HCC requested clarification
as to whether Hall’s response constituted a new or modified request. On January 7,
2020, Hall responded to both requests by consolidating them into one request
containing eleven items (“Request No. 1”). On January 17, 2020, HCC responded
to Hall, stating that, after a diligent search, it did not have records responsive to six
of the requested items and seeking clarification regarding the remaining five items.
On February 4, 2020, HCC sent a request to the Office of the Attorney General
(“OAG”), asking whether it was required to release information related to one of the
five remaining items. On February 10, 2020, HCC released records to Hall related
to two of the remaining items, and HCC notified Hall that it “did not have records
responsive to the last two of its requested items” and considered the request closed.
On March 4, 2020, Dolcefino submitted a TPIA request to HCC (“Request
No. 2”), seeking information concerning certain land sale contracts. Seven business
days later, however, HCC closed its offices for its scheduled Spring Break—March
16, 2020 through March 20, 2020. Thereafter, beginning on March 20, 2020 and
continuing thereafter, HCC “closed its offices indefinitely due to the COVID-19
pandemic.”
7
Generally, the requests involved documents relating to May’s work at The Harris
Center and records showing any payments she had made or received for her work.
4
HCC asserted that, beginning in late March, “much of the country (indeed the
world) largely stopped functioning due to COVID-19.” And, “[a]mong the hundreds
of state and local pronouncements issued throughout Texas in response to the
pandemic, the [OAG] informed all governmental entities” that the computation of
“business days” under the TPIA was affected as follows:
If a governmental body has closed its physical offices for purposes of a
public health or epidemic response or if a governmental body is unable
to access its records on a calendar day, then such day is not a business
day, even if staff continues to work remotely or staff is present but
involved directly in the public health or epidemic response.
Accordingly, on April 3, 2020, HCC notified Dolcefino of HCC’s closure due
to the COVID-19 pandemic, stating that it would “process open records
requests . . . upon HCC’s return to normal operations/business days, in accordance
with the [TPIA] and the [OAG’s] guidelines,” as follows:
To protect the health and safety of our students, faculty, and staff with
regard to COVID-19 (Coronavirus), [HCC] facilities are closed
beginning March 20, 2020 until further notice. Due to the COVID-19
pandemic and the Texas Governor’s recent disaster declaration, HCC
is following the Texas Attorney General’s guidelines regarding the
[TPIA]. The Attorney General has clarified that if a governmental body
has closed its physical offices for purposes of a public health or
epidemic response or if a governmental body is unable to access its
records on a calendar day, then such day is not a business day for
purposes of the [TPIA], even if staff continues to work remotely or staff
is present but involved directly in the public health or epidemic
response. As such, HCC will process open records requests submitted
during HCC’s closure/period of altered operations and will continue to
process pending requests such as yours upon HCC’s return to normal
operations/business days, in accordance with the [TPIA] and the
Attorney General’s guidelines.
5
On April 13, 2020, Hall submitted a TPIA request to HCC (“Request No. 3”),
seeking seven categories of information, including emails and text messages
involving May, documents authorizing her work on personnel matters at The Harris
Center, and May’s applications and resumes. On April 22, 2020, HCC again notified
Hall of its closure due to the COVID-19 pandemic and stated that the request would
be processed “upon HCC’s return to normal operations/business days, in accordance
with the [TPIA] and the [OAG’s] guidelines.”
On May 18, 2020, Hall submitted a TPIA request to HCC (“Request No. 4”),
seeking two categories of information. On May 19, 2020, HCC again notified Hall
of its closure due to the COVID-19 pandemic and stated that the request would be
processed “upon HCC’s return to normal operations/business days, in accordance
with the [TPIA] and the [OAG’s] guidelines.”
On May 25, 2020, Hall filed a Petition for Writ of Mandamus, asking the trial
court to compel HCC to comply with the TPIA by producing all public information
requested in each of Hall’s requests, i.e., Request Nos. 1, 3, and 4.
On June 23, 2020, Laha submitted a TPIA request to HCC (“Request No. 5”),
seeking information about certain contracts and settlements. Later that day, HCC
notified Laha of its closure due to the COVID-19 pandemic and stated that his
request would be processed “upon HCC’s return to normal operations/business days,
in accordance with the [TPIA] and the [OAG’s] guidelines.”
6
On June 25, 2020, Dolcefino submitted a TPIA request to HCC (“Request No.
6”), seeking copies of certain settlement agreements and documents detailing certain
expenditures. HCC asserts that, later the same day, it again notified Dolcefino of its
closure due to the COVID-19 pandemic and stated that it would process the request
“upon HCC’s return to normal operations/business days, in accordance with the
[TPIA] and the [OAG’s] guidelines.”
On June 29, 2020, Dolcefino submitted a TPIA request to HCC (“Request No.
7”), seeking certain documents detailing the race and nationality of employees
terminated from HCC since 2014. HCC again notified Dolcefino that it would
process the request “upon HCC’s return to normal operations/business days, in
accordance with the [TPIA] and the [OAG’s] guidelines.”
On July 27, 2020, Dolcefino and Laha, alleging that HCC had refused to
respond to their TPIA requests, intervened in Hall’s suit for mandamus relief. They
asked the trial court to compel HCC to provide the public information requested in
Request Nos. 2, 5, 6, and 7. They also asked the trial court to sever their requests
and enter separate writs.
On August 14, 2020, HCC filed its First Amended Plea to the Jurisdiction,
seeking the dismissal of appellees’ claims. HCC asserted that the trial court lacked
subject matter jurisdiction over appellees’ claims because HCC, as a governmental
body, was immune from suit, and the TPIA provides only a limited waiver of
7
immunity in cases in which a governmental body has “refused” to supply public
information. HCC asserted that there was no evidence that it had “refused” to give
appellees access to the requested public information.
HCC asserted that, with respect to Request No. 1, it had (1) conducted a good-
faith search and notified Hall that it did not have any responsive information to
several of its requests; (2) produced some responsive information; and (3) sought an
OAG decision as to whether it was required to disclose certain information that it
believed was protected by attorney-client privilege. HCC asserted that it received
Request No. 2 on March 4, 2020 and began processing it. However, before it was
complete, and before its deadline under the TPIA had expired, HCC closed its offices
for Spring Break, which continued until March 20, 2020. On March 20, 2020, HCC
closed its offices due to the COVID-19 pandemic. And, as of the date of its amended
plea on August 14, 2020, HCC had remained closed. HCC asserted that appellees
sent Request Nos. 3 through 8 while HCC’s offices were closed. Thus, pursuant to
the OAG’s guidelines, HCC was not incurring “business days” under the TPIA and
“had no obligation under the law to respond.” Rather, all statutory deadlines had
indefinitely ceased.
Subsequently, on August 19, 2020, Hall submitted another TPIA request to
HCC (“Request No. 8”), seeking copies of certain purchase orders and related
materials. On August 21, 2020, Hall filed a second amended petition for writs of
8
mandamus, asking the trial court to compel HCC to produce all public information
requested in each of Hall’s TPIA requests, i.e., Request Nos. 1, 3, 4, and 8. Hall also
asked the trial court to sever each request and issue a separate writ.
In addition, Hall filed a response, which Dolcefino and Laha joined, to HCC’s
First Amended Plea to the Jurisdiction. Appellees argued that the trial court had
jurisdiction over their claims because they, as requestors, were statutorily authorized
under the TPIA to seek mandamus relief when, as here, a public entity had refused
either to release requested public information or to timely seek an OAG decision
about the request. Appellees asserted that, with respect to Request No. 1, HCC’s
mere request of an OAG opinion did not indefinitely excuse HCC from complying
with their requests. And, no OAG opinion had been forthcoming. With respect to
Request Nos. 2 through 8, HCC was required to take certain statutorily-mandated
actions if it wished to delay the production of public information during the COVID-
19 epidemic and that HCC had failed to comply. Appellees further asserted that the
OAG’s guidelines were advisory and that the OAG had no authority to invalidate
statutory law or to excuse HCC’s failure to comply with the TPIA.
On September 24, 2020, the trial court denied HCC’s plea to the jurisdiction.
In its order, the trial court expressly declined to rule on Request No. 1 (the combined
request from December 2019 and January 2020), as follows:
9
The Court finds that HCC has partially responded to [Hall’s] December
and January TPIA requests and withheld some information while
seeking an opinion from the Attorney General.
[Hall] asks the Court to find that HCC’s requests for clarification of its
December and January TPIA requests were unreasonable stall tactics
and that HCC was untimely in seeking an AG opinion. While the Court
finds that some of HCC’s requests for clarification were reasonable,
most were not. HCC advises that an opinion from the Attorney General
has been received, but has not offered the opinion to the Court. [Hall]
also has not provided any evidence that HCC has failed to follow the
AG’s opinion. For this reason, the record is insufficient for the court to
rule on the December and January TPIA requests and reserves
Judgment on these requests until further proceedings.
With respect to Request Nos. 2 through 8, the trial court found that “HCC’s
purported justifications for not responding in any manner to these requests are not
tenable and that the failure to respond is effectively a refusal to respond.”
The trial court also granted appellees’ requested mandamus relief and severed
each of the requests into a separate writ, as follows:
With respect to Request No. 2,8 the trial court found:
The record in this case shows that on March 4, 2020 Dolcefino
served a written TPIA request on HCC. The request asked for four (4)
categories of public information. The Court finds that the requests were
reasonably clear as to the public information being sought and HCC
never sought clarification of the requests.
More than six (6) months have passed since Dolcefino served its
March 4, 2020 TPIA requests on HCC. The record shows that HCC has
not fully supplied all public information requested . . . and has not
supplied the Court with a statutorily authorized excuse for failing to
comply with the TPIA in responding to the . . . request. . . .
8
Trial court case number 2020-31380A.
10
With respect to Request No. 3,9 the trial court found:
The record in this case shows that on April 13, 2020 Hall served
a written TPIA request on HCC. The request asked for seven (7)
categories of public information. The court finds that the requests were
reasonably clear as to the public information being sought.
More than five months have passed since Hall served its April
13, 2020 TPIA requests on HCC. The record shows that HCC has not
fully supplied all public information requested by [Hall] and has not
supplied the Court with a statutorily authorized excuse for failing to
comply with the TPIA in responding to the . . . request. . . .
With respect to Request No. 4,10 the trial court found:
The record in this case shows that on May 18, 2020 Hall served
a written TPIA request on HCC. The request asked for two (2)
categories of public information. The court finds that the requests were
reasonably clear as to the public information being sought.
More than four months have passed since Hall served its May 18,
2020 TPIA requests on HCC. The record shows that HCC has not fully
supplied all public information requested by [Hall] and has not supplied
the Court with a statutorily authorized excuse for failing to comply with
the TPIA in responding to the May 18, 2020 TPIA request. . . .
With respect to Request No. 5,11 the trial court found:
The record in this case shows that on June 23, 2020 Laha served
a written TPIA request on HCC. The request asked for six (6) categories
of public information. The Court finds that the requests were reasonably
clear as to the public information being sought and HCC never sought
clarification of the requests.
More than forty-five (45) days have passed since Laha served his
June 23, 2020 TPIA requests on HCC. The record shows that HCC has
not fully supplied all public information requested . . . and has not
9
Trial court case number 2020-31380E.
10
Trial court case number 2020-31380F.
11
Trial court case number 2020-31380B.
11
supplied the Court with a statutorily authorized excuse for failing to
comply with the TPIA in responding to the June 23, 2020 TPIA
request. . . .
With respect to Request No. 6,12 the trial court found:
The record in this case shows that on June 25, 2020 Dolcefino
served a written TPIA request on HCC. The request asked for two (2)
categories of public information. The Court finds that the requests were
reasonably clear as to the public information being sought and HCC
never sought clarification of the requests.
More than forty-five (45) days have passed since Dolcefino
served its June 25, 2020 TPIA requests on HCC. The record shows that
HCC has not fully supplied all public information requested . . . and has
not supplied the Court with a statutorily authorized excuse for failing
to comply with the TPIA in responding to the . . . request. . . .
With respect to Request No. 7,13 the trial court found:
The record in this case shows that on June 29, 2020 Dolcefino
served a written TPIA request on HCC. The request asked for four (4)
categories of public information. The Court finds that the requests were
reasonably clear as to the public information being sought and HCC
never sought clarification of the requests.
More than forty-five (45) days have passed since Dolcefino
served its June 29, 2020 TPIA requests on HCC. The record shows that
HCC has not fully supplied all public information requested . . . and has
not supplied the Court with a statutorily authorized excuse for failing
to comply with the TPIA in responding to the . . . request. . . .
With respect to Request No. 8,14 the trial court found:
The record in this case shows that on August 19, 2020 Hall
served [a] written TPIA request on HCC. The request asked for four (4)
12
Trial court case number 2020-31380C.
13
Trial court case number 2020-31380D.
14
Trial court case number 2020-31380G.
12
categories of public information. The court finds that the requests were
reasonably clear as to the public information being sought.
More than one month has passed since Hall served its August 19,
2020 TPIA requests on HCC. The record shows that HCC has not fully
supplied all public information requested by [Hall] and has not supplied
the Court with a statutorily authorized excuse for failing to comply with
the TPIA in responding to the August 19, 2020 TPIA request. . . .
In addition, in each writ, the trial court found that:
HCC’s failure to comply with the unambiguous requirements of Tex.
Gov’t Code 552.233 governing a public entity’s suspension of the TPIA
during an epidemic was not excused. Further, the record shows that
HCC did not comply with the legal notice and requirements specified
in the [TPIA] to suspend its compliance with the TPIA during an
epidemic like COVID-19.
The trial court ordered that HCC provide all public information responsive to each
request. And, if HCC did not comply, appellees could have “any law enforcement
officer compel compliance . . . by use of any and all lawfully permitted and available
means.”
Plea to the Jurisdiction
In its sole issue, HCC argues that the trial court erred in denying its plea to the
jurisdiction because HCC is a governmental body and appellees did not establish a
waiver of governmental immunity under the TPIA, i.e., that HCC refused to seek an
OAG decision as to whether appellees’ requested information constituted public
information or refused to supply public information. See TEX. GOV’T CODE
§ 552.321(a).
13
Standard of Review and Governing Legal Principles
A trial court’s ruling on a jurisdictional plea is subject to de novo review. Tex.
Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). A
plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of
subject matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
Although the plaintiffs’ claims may form the context against which the jurisdictional
plea is determined, the purpose of the plea is “to defeat a cause of action without
regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000).
Review of a plea challenging the existence of jurisdictional facts, as here,
mirrors that of a traditional summary-judgment motion. Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); City of Hous. v. Guthrie, 332
S.W.3d 578, 587 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“[T]his
standard generally mirrors that of a summary judgment under Texas Rule of Civil
Procedure 166a(c) . . . . By requiring the [governmental body] to meet the summary
judgment standard of proof . . . , we protect the plaintiffs from having to put on their
case simply to establish jurisdiction.”); see also TEX. R. CIV. P. 166a(c). A court
may consider evidence as necessary to resolve a dispute over the jurisdictional facts,
even if the evidence “implicates both the subject matter jurisdiction of the court and
the merits of the case.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
14
226 (Tex. 2004). We take as true all evidence favorable to the plaintiffs and indulge
every reasonable inference and resolve any doubts in their favor. Id. at 228.
If the governmental body meets its burden to establish that the trial court lacks
jurisdiction, then the plaintiffs must show that there is a disputed material fact
regarding the jurisdictional issue. Id. at 227–28. If the evidence raises a fact issue
regarding jurisdiction, the plea cannot be granted and a factfinder must resolve the
issue. Id. If the evidence is undisputed or fails to raise a fact issue, the plea must be
determined as a matter of law. Id. at 228.
Here, it is undisputed that HCC is a “governmental body” generally immune
from suit, except where that immunity has been specifically waived by the
legislature. See TEX. GOV’T CODE § 552.003(1)(A); Alamo Heights Indep. Sch. Dist.
v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); see also Mosley v. Houston Cmty. Coll.
Sys., 951 F. Supp. 1279, 1290 (S.D. Tex. 1996).
The TPIA provides a limited waiver of governmental immunity by allowing
a requestor of public information to bring a suit for a writ of mandamus to compel a
governmental body to release the information. See TEX. GOV’T CODE § 552.321(a).
A requestor may seek mandamus relief under the TPIA if the governmental body
“refuses” (1) to seek an OAG decision as to whether requested information is public
or (2) to supply public information. See id. It is the refusal to supply public
information that is the standard by which to determine whether governmental
15
immunity has been waived and whether a court has subject matter jurisdiction over
the claim. City of Galveston v. CDM Smith, Inc., 470 S.W.3d 558, 572 (Tex. App.—
Houston [14th Dist.] 2015, pet. denied) (“By its plain terms, the [TPIA’s] waiver of
immunity for mandamus relief requires the [governmental body] to have ‘refuse[d]’
to supply public information.”). In the context of the TPIA, to “refuse” means to
“show or express a positive unwillingness to do or comply.” City of El Paso v.
Abbott, 444 S.W.3d 315, 324 (Tex. App.—Austin 2014, pet. denied).
The purpose of the TPIA is to provide accountability and transparency in
government by establishing mechanisms to foster public access to government
records. See TEX. GOV’T CODE § 552.001(a); Greater Hous. P’ship v. Paxton, 468
S.W.3d 51, 57 (Tex. 2015); Jackson v. State Office of Admin. Hearings, 351 S.W.3d
290, 293 (Tex. 2011) (noting purpose of TPIA to provide public with “complete
information about the affairs of government and the official acts of public officials
and employees”). The TPIA “shall be liberally construed in favor of granting a
request for information.” TEX. GOV’T CODE § 552.001(b).
Pursuant to the TPIA, “[a]n officer for public information of a governmental
body shall promptly produce public information for inspection, duplication, or both
on application by any person to the officer.” Id. § 552.221(a). “Promptly” means
“as soon as possible under the circumstances, that is, within a reasonable time,
without delay.” Id. If the governmental body cannot produce the public information
16
“within 10 business days” after the date the information is requested, it “shall certify
that fact in writing to the requestor and set a date and hour within a reasonable time
when the information will be available.” Id. § 552.221(d). If the request is “unclear
to the governmental body, it may ask the requestor to clarify the request.” Id.
§ 552.222(b). For high volume requests, the governmental body may discuss with
the requestor how the scope of the request might be narrowed. Id.
If a governmental body wishes to withhold requested information from public
disclosure that it considers to be within one of the exceptions under the TPIA, it
must, “not later than the 10th business day” after receiving the request, ask the OAG
for a decision on the matter, unless there has been a previous decision, and notify
the requestor. Id. § 552.301. If the governmental body does not timely comply, the
information at issue is presumed public and must be released, unless there is a
compelling reason to withhold the information. Id. § 552.302.
The deadlines under the TPIA may be extended during a catastrophic event.
Government Code section 552.233, titled “Temporary Suspension of Requirements
for Governmental Body Impacted by Catastrophe,” allows a governmental body
impacted by a catastrophic event, including an epidemic (or pandemic) like
COVID-19, to elect to “suspend” the requirements of the TPIA for a period of up to
17
14 consecutive days. See id. § 552.233 (defining “catastrophe” and providing
procedure for electing “suspension period”).15
Section 552.233 provides that:
The requirements of [the TPIA] do not apply to a governmental body
during the suspension period determined by the governmental body
under Subsections (d) and (e) if the governmental body:
(1) is currently impacted by a catastrophe; and
(2) complies with the requirements of this section.
Id. § 552.233(b). A governmental body that elects to temporarily suspend the
TPIA’s requirements “must submit notice to the [OAG] that the governmental body
is currently impacted by a catastrophe and has elected to suspend the applicability
of those requirements during the initial suspension period,” which may not exceed
“seven consecutive days.” See id. § 552.233(c)–(d). The governmental body may
15
In 2021, the Texas Legislature amended section 552.233 to provide that a
“‘catastrophe’ does not mean a period when staff is required to work remotely and
can access information responsive to an application for information electronically,
but the physical office of the governmental body is closed.” See Act of May 17,
2019, 86th Leg., R.S., ch. 462, § 4, 2019 Tex. Gen. Laws 865, 866, amended by Act
of May 11, 2021, 87th Leg., R.S., ch. 164, § 1 (S.B. 1225) (current version at TEX.
GOV’T CODE § 552.233). In addition, the Legislature added section 552.2211,
providing that: “Except as provided by Section 552.233, if a governmental body
closes its physical offices, but requires staff to work, including remotely, then the
governmental body shall make a good faith effort to continue responding to
applications for public information, to the extent staff have access to public
information responsive to an application, pursuant to this chapter while its
administrative offices are closed.” See Act of May 17, 2019, 86th Leg., R.S., ch.
462, § 4, 2019 Tex. Gen. Laws 865, 866, amended by Act of May 11, 2021, 87th
Leg., R.S., ch. 164, § 2 (S.B. 1225) (to be codified at TEX. GOV’T CODE § 552.2211).
As noted above, we apply the current version of the TPIA.
18
extend the initial suspension period “one time” for “not more than seven consecutive
days.” Id. § 552.233(e). A governmental body that suspends the applicability of the
TPIA must provide certain notices to the public. Id. § 552.233(f). The OAG “shall
prescribe the form of the notice that a governmental body must submit to the office”
and “shall continuously post” on its website each notice submitted to the office under
this section. Id. § 552.233(i), (j).
Analysis
In its live plea to the jurisdiction, HCC argued that the trial court lacked
subject matter jurisdiction over appellees’ TPIA claims because the jurisdictional
evidence establishes that HCC did not “refuse” (1) to seek an OAG decision as to
whether the requested information was public or (2) to supply public information.
See id. § 552.321; CDM Smith, 470 S.W.3d at 572.
With respect to Request No. 1, under which Hall consolidated its December
11, 2019 and January 2, 2020 requests, the trial court found that HCC had “partially
responded” and had “withheld some information while seeking an opinion from the
[OAG].” In addition, it found that, although HCC had advised that an OAG opinion
had been received, HCC had not offered the opinion to the trial court. Conversely,
Hall had “not provided any evidence that HCC ha[d] failed to follow the [OAG’s]
opinion.” The trial court concluded that, “[f]or this reason, the record [was]
insufficient for the court to rule.” And, it “reserve[d] judgment on these requests
19
until further proceedings.” We conclude that, there being fact issues regarding the
trial court’s jurisdiction over Request No. 1 and no ruling, nothing is presented for
our review. See Miranda, 133 S.W.3d at 227–28 (stating that if evidence raises fact
issue regarding jurisdiction, plea cannot be granted and factfinder must resolve).
With respect to Request Nos. 2 through 8, it is undisputed that HCC did not
seek an OAG decision as to whether the requested information was public. See TEX.
GOV’T CODE § 552.321. The parties do not dispute that the information appellees
sought in Request Nos. 2 through 8 constituted “public information.” See id.
§ 552.002. The question presented is whether the jurisdictional evidence establishes
that HCC refused to supply the requested public information. See id. § 552.321.
Resolution of jurisdictional questions frequently entails, as here, issues of
statutory construction, which itself presents a question of law. Abbott, 444 S.W.3d
at 320. When construing a statute, our primary objective is to ascertain and give
effect to the legislature’s intent. TEX. GOV’T CODE § 312.005; see TGS-NOPEC
Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). To discern that intent,
we begin with the words of the statute. TEX. GOV’T CODE § 312.002. If a statute
uses a term with a particular meaning or assigns a particular meaning to a term, we
are bound by the statutory usage. Combs, 340 S.W.3d at 439. Undefined terms are
typically given their ordinary meaning, unless a different or more precise definition
is apparent from their use in the context of the statute. Id. If a statute is
20
unambiguous, we adopt the interpretation supported by its plain language unless
such an interpretation would lead to absurd results. Id. We consider statutes as a
whole. Id. We presume that the legislature chooses a statute’s language with care,
including each word for a purpose, while purposefully omitting words not chosen.
Id. If there is vagueness, ambiguity, or room for policy determinations in a statute
or regulation, we may defer to agency interpretation unless it is plainly erroneous or
inconsistent with the language of the statute, regulation, or rule. Id. at 438.
Here, the TPIA required that HCC, on the application of any person,
“promptly produce” public information. See TEX. GOV’T CODE § 552.221(a).
Again, “promptly” means “as soon as possible under the circumstances, that is,
within a reasonable time, without delay.” Id. If HCC could not produce the
requested public information “within 10 business days” after the date of the request,
HCC was required to “certify that fact in writing to the requestor and set a date and
hour within a reasonable time when the information [would] be available.” Id.
§ 552.221(d).
HCC does not dispute that it did not produce the public information responsive
to Request Nos. 2 through 8 within 10 business days after the information was
requested and did not “set a date and hour within a reasonable time when the
information would be available,” as statutorily required See id. Nor does HCC
dispute that it did not produce the requested public information by the time of the
21
trial court’s ruling, on September 24, 2020, which was up to six months after HCC
received appellees’ requests. HCC admits that it did not process the requests, as
required under the TPIA, and that it notified appellees that processing their requests
was indefinitely postponed. Thus, the record supports the trial court’s finding that
HCC’s “failure to respond [was] effectively a refusal to respond” under the TPIA.
See id. § 552.321; Abbott, 444 S.W.3d at 324 (noting that, in context of TPIA, to
“refuse” means to “show or express a positive unwillingness to do or comply”).
Again, the TPIA provides that, during a catastrophic event, including a
pandemic such as COVID-19, a governmental body may elect to temporarily
suspend the ten-business-day deadline up to a total of 14 consecutive, or calendar,
days. See TEX. GOV’T CODE § 552.233. It is undisputed that HCC did not make an
election to temporarily suspend the applicability of the TPIA, although we note that
HCC’s delays in releasing the requested public information exceeded the maximum
suspension period under the statute regardless. See id.
HCC argued in its plea to the jurisdiction that its failure to supply the public
information at issue did not constitute a “refusal” under the TPIA because, in light
of the COVID-19 pandemic, the OAG issued guidelines defining the term “business
day” in the TPIA in a manner that suspended the TPIA indefinitely and rendered a
temporary suspension unnecessary. See id. §§ 552.221(d), .233, .321. In support of
22
its argument, HCC attached to its plea a copy of the OAG’s guidelines, which the
OAG posted on its website. The guidelines state:
Update: Calculation of Business Days and COVID-19
As part of the unprecedented response to coronavirus in Texas, and in
light of the Governor’s recent disaster declaration, our office has
received inquiries regarding the calculation of business days under the
Public Information Act (the “Act”) and related use of the new
temporary suspension process under section 552.233 of the
Government Code.
Section 552.233 of the Government Code permits a governmental body
impacted by a catastrophe or disaster to suspend the applicability of the
Act for up to 14 calendar days. Use of the section 552.233 suspension
process is appropriate where a governmental [body] is open for
business but determines that a catastrophe has interfered with its ability
to comply with the Act. A section 552.233 suspension is not necessary
if the governmental body is not open for business or if the applicable
suspension period does not otherwise encompass a business day, as
described below:
• Holidays observed by governmental bodies are not business
days.
• Weekends are not business days.
• Skeleton crew days are not business days.
• A day on which a governmental body’s administrative offices are
closed is not a business day.
• If a governmental body has closed its physical offices for
purposes of a public health or epidemic response or if a
governmental body is unable to access its records on a calendar
day, then such day is not a business day, even if staff continues
to work remotely or staff is present but involved directly in the
public health or epidemic response.
(Emphasis added.)
HCC asserted that it “closed its offices from Monday, March 16 to Friday,
March 20, 2020, for spring break, and thereafter closed its offices beginning March
23
20, 2020 due to COVID-19.” And, “HCC’s offices remain closed to this day.”
Relying on the emphasized language, it asserted, “HCC has not incurred any
‘business days’ under the TPIA since March 16, [2020] and all of its deadlines under
the TPIA have ceased.” And, thus, “it was not refusing to comply” with the TPIA.
HCC essentially asserted that this language authorized it to indefinitely postpone
producing public information responsive to appellees’ requests and that it notified
each requestor accordingly.
HCC asserted that it was “processing” Request No. 2 when it closed for Spring
Break on March 16, 2020. At that point, HCC had incurred only 7 business days
since its receipt of the request. And, HCC remained closed for Spring Break through
March 20, 2020. Thereafter, beginning on March 20, 2020, HCC “closed its offices
indefinitely due to the COVID-19 pandemic.” HCC notified Dolcefino on April 3,
2020 of HCC’s closure due to the COVID-19 pandemic and stated that it would
process Request No. 2 “upon HCC’s return to normal operations/business days, in
accordance with the [TPIA] and the [OAG’s] guidelines.”
With respect to Request Nos. 3 through 8, HCC asserted that it notified each
requestor immediately after receipt of their request that HCC was closed. Hall
submitted Request Nos. 3 and 4 on April 13, 2020 and May 19, 2020, respectively.
On April 22, 2020 and May 19, 2020, HCC again notified Hall of its closure due to
the COVID-19 pandemic and stated that its requests would be processed “upon
24
HCC’s return to normal operations/business days, in accordance with the [TPIA]
and the [OAG’s] guidelines.” Laha submitted Request No. 5 on June 23, 2020. HCC
notified Laha that same day of its closure due to COVID-19 and that his request
would be processed “upon HCC’s return to normal operations/business days, in
accordance with the [TPIA] and the [OAG’s] guidelines.” Dolcefino submitted
Request Nos. 6 and 7 on June 25 and 29, 2020, respectively. HCC again notified
Dolcefino of its closure and stated that it would process the requests “upon HCC’s
return to normal operations/business days, in accordance with the [TPIA] and the
[OAG’s] guidelines.” Hall submitted Request No. 8 on August 19, 2020. On August
20, 2020, HCC again notified Hall of its closure due to COVID-19 and that it would
process the request “upon HCC’s return to normal operations/business days, in
accordance with the [TPIA] and the [OAG’s] guidelines.”
HCC notes that, “[t]hroughout the TPIA, the statute mandates that virtually
all deadlines are calculated using the responding governmental entity’s ‘business
days.’” See, e.g., TEX. GOV’T CODE §§ 552.221(d), .225(a), .233(g), .2615, .301(b).
We note that the term “business day” is not defined in the TPIA. “When a statute
uses a word that it does not define, our task is to determine and apply the word’s
common, ordinary meaning.” Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563
(Tex. 2014). In determining the common, ordinary meaning of a term, we may look
to a “wide variety of sources, including dictionary definitions, treatises and
25
commentaries, our own prior constructions of the word in other contexts, the use and
definitions of the word in other statutes and ordinances, and the use of the words in
our rules of evidence and procedure.” Id.The common meaning of the term “business day” is “[a] day that most
institutions are open for business.” BLACK’S LAW DICTIONARY 402 (7th ed. 1999).
The term “business day” is defined elsewhere in the Government Code, and in other
statutes, as a day other than a Saturday, Sunday, or holiday. See TEX. GOV’T CODE
§ 2116.001 (“Business day” means a day other than a Saturday, Sunday, or banking
holiday for a bank chartered under the laws of this state.”); see also TEX. EST. CODE
§ 452.004 (defining “business day” as “a day other than a Saturday, Sunday, or
holiday recognized by this state”); TEX. FAM. CODE § 86.0011 (defining “business
day” as “a day other than a Saturday, Sunday, or state or national holiday”); TEX.
HEALTH & SAFETY CODE § 775.0221 (defining “business day” as “a day other than
a Saturday, Sunday, or state or national holiday”); TEX. INS. CODE § 542.051
(defining “business day” as “a day other than Saturday, Sunday, or holiday
recognized by this state”); TEX. LOC. GOV’T CODE § 143.034 (“In computing this
period, a Saturday, Sunday, or legal holiday is not considered a business day.”); TEX.
PROP. CODE § 62.026 (providing that “business day” means “a day other than a
Saturday, Sunday, or holiday recognized by this state”).
26
The OAG guidelines, in pertinent part, state that, “[a]s part of the
unprecedented response to coronavirus in Texas, and in light of the Governor’s
recent disaster declaration,” it has received inquiries regarding the “calculation of
business days” under the TPIA. And, it concludes that a section 552.233 suspension
is “not necessary” if the governmental body is “not open for business or if the
applicable suspension period does not otherwise encompass a business day,” which
it describes as follows:
If a governmental body has closed its physical offices for purposes of a
public health or epidemic response or if a governmental body is unable
to access its records on a calendar day, then such day is not a business
day, even if staff continues to work remotely or staff is present but
involved directly in the public health or epidemic response.
(Emphasis added.)
Beginning with the context in which the OAG issued its guidelines, the Texas
Disaster Act of 1975 (“Disaster Act”), codified at Government Code Chapter 418,
is a “comprehensive, detailed continuity-of-government framework that carefully
allocates powers, duties, and responsibilities across various levels of state
government and multiple agencies.” State v. El Paso Cty., 618 S.W.3d 812, 831–32
(Tex. App.—El Paso 2020, mand. dism’d) (Rodriguez, J., dissenting); see TEX.
GOV’T CODE ch. 418. One of its stated purposes is to “clarify and strengthen the
roles of the governor, state agencies, the judicial branch of state government, and
local government in prevention of, preparation for, response to, and recovery from
27
disasters.” TEX. GOV’T CODE § 418.002(4). It authorizes the governor to waive or
suspend certain statutory provisions, requirements, and deadlines if compliance
would hinder or delay actions necessary to cope with a disaster. See id. § 418.016.
On March 13, 2020, Governor Greg Abbott issued a proclamation certifying
that COVID-19 “poses an imminent threat of disaster for all counties in the State of
Texas.”16 Each month thereafter, throughout the time pertinent to this appeal, the
Governor renewed his state disaster declaration and issued numerous emergency
orders pertaining to the coronavirus pandemic.17 For instance, these orders included
suspensions of portions of the Texas Open Meetings Act.18 See id.; see also TEX.
GOV’T CODE ch. 551. However, we are unaware of, and HCC has not directed us to,
any such orders suspending the TPIA.
“The Attorney General is a member of the Executive Department whose
primary duties are to render legal advice in opinions to various political agencies and
to represent the State in civil litigation.” Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex.
2001); see TEX. GOV’T CODE § 402.021. “While Attorney General opinions are
16
The Governor of the State of Tex., Proclamation No. 41-3720 (issued Mar. 13,
2020), 45 Tex. Reg. 2094, 2094–95 (2020).
17
See The Governor of the State of Tex., Exec. Orders GA-08–36, available at
https://lrl.texas.gov/legeLeaders/governors/displayDocs.cfm?govdoctypeID=5&go
vernorID=45 (last visited June 7, 2021).
18
See Office of Governor Greg Abbott, COVID-19 OMA Suspension Letter,
https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/open-
government/COVID-19-OMA-Suspension-Letter.pdf (last visited June 7, 2021).
28
persuasive, they are not controlling on the courts.” Holmes v. Morales, 924 S.W.2d
920, 924 (Tex. 1996); see In re Smith, 333 S.W.3d 582, 588 (Tex. 2011) (“The
opinion of the attorney general is not binding on this Court. . . .”).
Here, HCC relies, not on a formal opinion by the OAG, but on guidelines
posted on the OAG’s website. The OAG is tasked with “maintain[ing] uniformity
in the application, operation, and interpretation” of the TPIA. TEX. GOV’T CODE
§ 552.011; Harris Cty. Appraisal Dist. v. Integrity Title Co., LLC, 483 S.W.3d 62,
66 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). “While the Attorney
General’s interpretation of the [TPIA] may be persuasive, it is not controlling.” City
of Dall. v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010); Harris Cty. Appraisal Dist.,
483 S.W.3d at 66.
Again, our task in construing a statute is to give effect to the legislature’s
intent in enacting it. Abbott, 304 S.W.3d at 384. We are ordinarily confined to the
statute’s plain language. Id. When a provision is silent, such as to the definition of
“business day,” as here, we look to the statute as a whole and strive to give it a
meaning that is in harmony with its other provisions. Id.
The TPIA is to be “liberally construed in favor of granting a request for
information.” TEX. GOV’T CODE § 552.001(b). And, a governmental body is
required to “promptly produce public information . . . on application by any person
to the officer.” Id. § 552.221(a). “Promptly” means “as soon as possible under the
29
circumstances, that is, within a reasonable time, without delay.” Id. The TPIA
requires that if a governmental body cannot produce requested public information
“within 10 business days” after the date of the request, it “shall certify that fact in
writing to the requestor and set a date and hour within a reasonable time when the
information will be available.” See id. § 552.221(d).
In the language upon which HCC relies in the OAG’s guidelines, the OAG
expanded the common definition of the term “business day,” as discussed above,
such that the term, under the TPIA, does not include days on which a governmental
body has closed its physical offices in response to an epidemic, i.e., COVID-19, even
if staff continues to work remotely, without regard to duration. Notably, HCC
asserts that, as of the date of the trial court’s ruling, HCC had thus been “closed” for
over six months. It does not assert that, during that time, it was unable to access its
records or that all of its staff was directly involved in the epidemic response. If,
under such circumstances, “business days” do not accrue, then a governmental
body’s duty to comply with the TPIA is suspended indefinitely. See id. § 552.221(d)
(requiring production of requested public information within 10 “business days”).
Again, as HCC notes, “[t]hroughout the TPIA, the statute mandates that virtually all
deadlines are calculated using the responding . . . entity’s ‘business days.’”
We conclude that the OAG’s interpretation of the term “business day” under
the TPIA, insofar as it excludes days that a “governmental body has closed its
30
physical offices for purposes of a public health or epidemic response . . . , even if
staff continues to work remotely,” without limit or regard to duration, is inconsistent
with the TPIA as a whole, which is to be “liberally construed in favor of granting a
request for information” and requires a governmental body to “promptly produce
public information.” Id. §§ 552.001(b), 552.221(a); see Abbott, 304 S.W.3d at 384
(noting that “[t]he Legislature has clearly expressed an intent that governmental
entities respond promptly to requests for public information,” declining to follow
OAG’s interpretation of TPIA provision involving silent matter and instead
construing in light of “statute as a whole”).
In addition, the OAG’s interpretation is inconsistent with section 552.233,
which expressly addresses the processing of TPIA requests during an epidemic and
caps the suspension period at a maximum of 14 consecutive days. See TEX. GOV’T
CODE § 552.233; see Abbott, 304 S.W.3d at 384 (concluding that OAG’s
interpretation of TPIA provision was “inconsistent with other provisions of the Act”
and declining to follow).
Because we are not persuaded by the OAG’s interpretation of the term
“business day,” insofar as discussed, we decline to follow it.19 See Abbott, 304
19
We note that the attorney general must be served with a copy of any proceeding
challenging the constitutionality of a statute or ordinance and is entitled to be heard.
See TEX. CONST. art. V, § 32, TEX. GOV’T CODE § 402.010 (requiring courts to
notify OAG of state constitutional challenges); TEX. CIV. PRAC. & REM. CODE
§ 37.006(b). This is not, however, a proceeding challenging the constitutionality of
31
S.W.3d at 384; see also Boeing Co. v. Paxton, 466 S.W.3d 831, 838 (Tex. 2015)
(“While the Attorney General’s interpretation of the [TPIA] is entitled to due
consideration, as with other administrative statutory constructions, such deference
must yield to unambiguous statutory language.”); see, e.g., Abbott v. Tex. State Bd.
of Pharmacy, 391 S.W.3d 253, 259 (Tex. App.—Austin 2012, no pet.); Allegheny
Cas. Co. v. State, 52 S.W.3d 894, 900 (Tex. App.—El Paso 2001, no pet.); City of
Garland v. Dall. Morning News, 969 S.W.2d 548, 554–55 (Tex. App.—Dallas
1998), aff’d, 22 S.W.3d 351 (Tex. 2000).
We conclude that HCC did not establish as a matter of law that its failure to
supply public information responsive to appellees’ requests did not constitute a
“refusal” under the TPIA. See TEX. GOV’T CODE §§ 552.221(d), .321(a); CDM
Smith, 470 S.W.3d at 572 (“By its plain terms, the [TPIA’s] waiver of immunity for
mandamus relief requires the [governmental body] to have ‘refuse[d]’ to supply
public information.”); see also Miranda, 133 S.W.3d at 227–28. Because we
conclude that the trial court has jurisdiction over appellees’ TPIA claims, we hold
that the trial court did not err in denying HCC’s plea to the jurisdiction.
We overrule HCC’s sole issue.
a statute or ordinance. We do not determine whether the OAG’s website guidelines
vitiate Government Code section 552.233 because it is undisputed that HCC did not
invoke section 552.233.
32
Conclusion
We affirm the trial court’s denial of HCC’s plea to the jurisdiction.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Landau and Countiss.
33