Texas Tech University v. Dolcefino Communications, LLC Dba Dolcefino Consulting , 565 S.W.3d 442 ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00225-CV
TEXAS TECH UNIVERSITY, APPELLANT
V.
DOLCEFINO COMMUNICATIONS, LLC DBA
DOLCEFINO CONSULTING, APPELLEE
On Appeal from the 99th District Court
Lubbock County, Texas
Trial Court No. 2018-528,740, Honorable William C. Sowder, Presiding
December 4, 2018
OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Texas Tech University, appellant, appeals from the denial of its plea challenging
the trial court’s jurisdiction to hear claims brought by Dolcefino Communications, LLC,
d/b/a Dolcefino Consulting, appellee, under the Texas Public Information Act. 1 We
reverse.
1 See TEX. GOV’T CODE ANN. § 552.321 (West Supp. 2012).
Background
In the fall of 2017, Dolcefino requested various records from Texas Tech under the
Texas Public Information Act (“PIA”) related to the firing of the university’s former football
coach, Mike Leach, and other matters. For reasons described below, Texas Tech did not
produce all the records requested. Dolcefino filed a petition for mandamus relief under
section 552.321 of the Texas Government Code seeking to compel Texas Tech to release
the records.2
In response, Texas Tech filed a plea to the jurisdiction, alleging that the trial court
lacked jurisdiction to consider Dolcefino’s claims. The trial court denied the plea to the
jurisdiction as to Dolcefino’s PIA claims and the university filed this appeal.3
Standard of Review
A plea to the jurisdiction is a dilatory plea that challenges the trial court’s jurisdiction
to hear the subject matter of the cause of action. Timmons v. Univ. Med. Ctr., 331 S.W.3d
840, 843 (Tex. App.—Amarillo 2011, no pet.) (citing Harris Cty. v. Sykes, 136 S.W.3d
635, 638 (Tex. 2004)). Subject matter jurisdiction is necessary for a trial court to decide
a case. Ackers v. City of Lubbock, 253 S.W.3d 770, 773 (Tex. App.—Amarillo 2007, pet.
denied). We review the issue of whether a trial court has subject matter jurisdiction de
novo. State of Tex. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). When a plea to the
jurisdiction includes evidence implicating the merits of the plaintiff’s cause of action, as in
2 Dolcefino also brought claims for declaratory relief under Chapter 37 of the Texas Civil Practice
and Remedies Code. The trial court granted Texas Tech’s plea to the jurisdiction as to those claims, and
Dolcefino has not appealed that decision.
3 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2018) (providing a right to an
interlocutory appeal on rulings granting or denying pleas to the jurisdiction).
2
this case, the procedure mirrors that of a traditional motion for summary judgment; the
trial court is to review the relevant evidence to determine whether a fact issue exists. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004). A plea to the
jurisdiction may not be granted if the evidence raises a fact question, as the factfinder
should resolve the fact issue. Id. at 228. If, however, the evidence fails to raise a fact
question on the jurisdictional issue, then the plea may be ruled upon as a matter of law.
Id. When evidence has been submitted implicating the merits of the suit, we take as true
all evidence favorable to the nonmovant and indulge every reasonable inference and
resolve all doubts in favor of the nonmovant. Id.
Analysis
As a governmental entity, Texas Tech is generally entitled to governmental
immunity, which bars suits against the state and its entities other than for claims for which
immunity has been waived. See Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500,
512 (Tex. 2012). The PIA provides one such waiver of immunity, as it allows a requestor
of public information to bring a suit for writ of mandamus under certain circumstances.
TEX. GOV’T CODE ANN. § 552.321(a); Tex. State Bd. of Veterinary Med. Exam’rs v.
Giggleman, 408 S.W.3d 696, 699 (Tex. App.—Austin 2013, no pet.). In its plea to the
jurisdiction, Texas Tech contends that those specific circumstances have not been met
and, consequently, the trial court lacks authority to decide the subject matter of
Dolcefino’s PIA causes of action. See Miranda, 133 S.W.3d at 225-26.
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Statutory Prerequisites to Suit
The Legislature has prescribed that all statutory prerequisites to suit are
jurisdictional in suits against governmental entities. TEX. GOV’T CODE ANN. § 311.034
(West 2013). Claims that prerequisites to suit have not been met are properly asserted
in a plea to the jurisdiction. Chatha, 381 S.W.3d at 511. The questions presented by this
case, then, are whether the requirements of section 552.321 of the Texas Government
Code are “statutory prerequisites” to suit and, if so, whether those prerequisites were
satisfied when Dolcefino filed suit.
In Chatha, the Texas Supreme Court explained that a statutory prerequisite is a
statutory provision that is “mandatory and must be accomplished prior to filing suit.” Id.
at 512. A statutory prerequisite has three defining characteristics: (1) it is found in the
relevant statutory language, (2) it is a requirement, and (3) the requirement must be met
before the lawsuit is filed. Id. at 511-12; see also Scott v. Presidio Indep. Sch. Dist., 266
S.W.3d 531, 535 (Tex. App.—Austin 2008) (op. on reh’g) (“A ‘statutory prerequisite to a
suit . . . against a governmental entity’ refers to a step or condition that must be satisfied
before the suit against the state can be filed.”), rev’d on other grounds, 309 S.W.3d 927(Tex. 2010).
We begin our analysis with a review of section 552.321(a) of the Texas
Government Code, which provides:
A requestor or the attorney general may file suit for a writ of mandamus
compelling a governmental body to make information available for public
inspection if the governmental body refuses to request an attorney general’s
decision as provided by Subchapter G or refuses to supply public
information or information that the attorney general has determined is public
information that is not excepted from disclosure under Subchapter C.
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TEX. GOV’T CODE ANN. § 552.321(a).
Looking at the plain language of this statute, and bearing in mind the tenet that
statutes waiving immunity are strictly construed4 as not waiving immunity unless that
waiver is effected by “clear and unambiguous language,” W. Tex. Mun. Power Agency v.
Republic Power Partners, L.P., 428 S.W.3d 299, 305 (Tex. App.—Amarillo 2014, no pet.),
we deem the three characteristics identified by Chatha to be present in section
552.321(a). Within the statute is language that imposes a requirement, or a necessary
condition to filing suit; specifically, a requestor may file suit only upon showing that the
governmental body “refuses to supply public information” or “refuses to request an
attorney general’s decision.” See 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 Act’s
waiver of immunity for mandamus relief requires the [governmental entity] to have
‘refuse[d]’ to supply public information.”). Therefore, we conclude that the requirements
of section 552.321 create a statutory prerequisite to the waiver of immunity permitting a
requestor to seek a writ of mandamus in district court.
We must next consider whether these statutory prerequisites were satisfied when
Dolcefino filed suit. In its plea to the jurisdiction, Texas Tech argued that some of
Dolcefino’s requests had been withdrawn as a matter of law and therefore, as to those
requests, Dolcefino was not a “requestor” under section 552.321. Texas Tech further
4 We are mindful of Dolcefino’s argument that the policy of strict construction in waiver of immunity
cases is counterweighed by a strong policy of liberal construction favoring disclosure in PIA cases. See
TEX. GOV’T CODE ANN. § 552.001 (West 2012). We note that our review is limited to the question of whether
Texas Tech’s plea to the jurisdiction was properly denied, and does not reach the merits of Dolcefino’s
underlying claim, i.e., whether disclosure of the requested information is required under the PIA.
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argued that, as to three other requests, it had no responsive documents and therefore, it
was not “refus[ing] to supply public information,” as required for jurisdiction under section
552.321. We will examine these two categories of requests in turn.
Requests Deemed “Withdrawn” by Texas Tech
The lion’s share of Dolcefino’s requests at issue in this appeal were deemed
“withdrawn as a matter of law” by Texas Tech. Following receipt of each of these requests
for information from Dolcefino, Texas Tech responded by providing, via certified mail, an
estimate of the charges for producing the information pursuant to section 552.2615(a) of
the Texas Government Code. The university’s written estimates also notified Dolcefino:
“Pursuant to the Public Information Act, your request is considered automatically
withdrawn if you do not respond in writing to this itemized statement and provide the
appropriate deposit or bond within 30 business days of receiving this statement.”
Texas Tech’s cautionary statement to Dolcefino regarding deemed withdrawals
arises from section 552.2615(b) of the Texas Government Code, which provides that PIA
requests are:
considered to have been withdrawn by the requestor if the requestor does
not respond in writing to the itemized statement by informing the
governmental body within 10 business days after the date the statement is
sent to the requestor that: (1) the requestor will accept the estimated
charges; (2) the requestor is modifying the request in response to the
itemized statement; or (3) the requestor has sent to the attorney general a
complaint alleging that the requestor has been overcharged for being
provided with a copy of the public information.
TEX. GOV’T CODE ANN. § 552.2615(b) (West 2012). In its brief, Texas Tech asserts that it
allowed thirty days for Dolcefino’s response, rather than ten, out of an abundance of
caution.
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Dolcefino did not (1) accept the estimated charges, (2) modify its requests, or (3)
send a complaint to the attorney general within the statutory ten-day period, or even within
Texas Tech’s more generous thirty-day period. However, Dolcefino and Texas Tech did
engage in what Dolcefino characterizes as a “back-and-forth” regarding the charges due.
Dolcefino’s principal, Wayne Dolcefino, testified that, due to the continuing negotiations,
he understood that the requests were considered “properly submitted.” Dolcefino
maintains that the requests were not withdrawn or, alternatively, Texas Tech has waived
its claim or is estopped from arguing that they were withdrawn.
As set forth above, the language of section 552.321 requires that a requestor may
file suit only upon showing that the governmental body “refuses to supply public
information” or “refuses to request an attorney general’s decision.” Implicit in this
structure is the premise that there be a pending request for information—specifically, one
for which the governmental entity has expressed an unwillingness to either supply the
requested information or seek guidance from the attorney general. Under the framework
established by the Legislature, Dolcefino had a limited time to do one of three things:
accept the estimated charges, modify its request, or file a complaint with the attorney
general. Dolcefino did none of those things. Even if the parties were continuing to
negotiate, as Dolcefino claims, their ongoing parleying over price does not provide a basis
for overriding the statutory scheme for responding to an estimate of charges under the
PIA.5 Consequently, Dolcefino’s requests expired when time to act under the statute
5 Additionally, the PIA provides a remedy for parties who believe they have been overcharged for
being provided a copy of public information. See TEX. GOV’T CODE ANN. § 552.269 (West 2012); see also
City of Galveston, 470 S.W.3d at 572 (where city offered to produce documents but requestor complained
that cost estimate was too high, requestor failed to show that city was “unwilling” to supply the information).
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expired. In the absence of a pending request, there was no refusal to respond by Texas
Tech.
As to Dolcefino’s argument that Texas Tech waived or is estopped from making
the claim that the requests were deemed withdrawn, waiver and estoppel do not generally
apply to governmental entities. In re S.A.P., 156 S.W.3d 574, 577 (Tex. 2005); Seguin v.
Bexar Appraisal Dist., 373 S.W.3d 699, 714 (Tex. App.—San Antonio 2012, pet. denied).
Dolcefino directs us to no authority indicating that this general rule should not apply here.
We find no support for Dolcefino’s contention that Texas Tech cannot rely on section
552.2615(b) merely because the parties had engaged in a “back-and-forth” regarding
production.
Because Dolcefino’s requests were properly deemed withdrawn following
Dolcefino’s failure to proceed as directed by Texas Government Code section
552.2615(b), Texas Tech was not “refus[ing] to supply public information,” as to those
requests as required for jurisdiction under section 552.321. Therefore, the trial court erred
in denying Texas Tech’s plea to the jurisdiction as to those claims.
Requests for which Texas Tech Claimed No Responsive Information
The three remaining requests at issue are those for which Texas Tech answered
that it had no responsive information. In particular, on October 9 Dolcefino requested
“any completed investigation into the alleged mistreatment of Adam Jones by Mike
Leach,” on October 11, Dolcefino requested “documents detailing the General Ledger
Funds and Expenses of the Texas Tech Football Team,” and on November 30, Dolcefino
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requested “all publicly releasable documents including but not limited to any disciplinary
action, internal investigation and or complaints filed against Kent Hance.”
Texas Tech asserts that the trial court lacks jurisdiction over these three claims
because the requested information does not exist. Specifically, Texas Tech maintains
that it is not refusing to produce public information, but that it simply does not have the
information, and a refusal to produce is a prerequisite to jurisdiction under section
552.321(a). As explained above, we agree that a suit for writ of mandamus under section
552.321 is only available when “the governmental body refuses to request an attorney
general’s decision” or when it “refuses to supply public information or information that the
attorney general has determined is public information that is not excepted from
disclosure,” as set forth in the statute. TEX. GOV’T CODE ANN. § 552.321(a).
However, a movant in a plea to the jurisdiction must assert and support with
evidence the trial court’s lack of subject matter jurisdiction. See Miranda, 133 S.W.3d at
227-28. To establish that it was not refusing to supply public information, Texas Tech
had to produce evidence supporting that claim.
As evidence that it had no responsive documents, Texas Tech directs us to the
email replies that its associate general counsel sent to Dolcefino in response to the three
referenced requests. The university’s responses to the three requests were, respectively:
(1) It had no documents regarding any alleged mistreatment of ‘Adam Jones,’ nor did it
have a completed investigation report regarding Leach’s mistreatment of Adam James,
as the completion of that report was interrupted by litigation; (2) it did not have a “General
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Ledger Funds and Expenses” specific to the football team, nor did it have the ability to
create such a document; and (3) it had no documents responsive to the third request.
Dolcefino describes these responses as conclusory and argues that Texas Tech
“produced no evidence showing that it searched for or produced responsive information.”
Dolcefino points to City of El Paso v. Abbott, 444 S.W.3d 315, 325 (Tex. App.—Austin
2014, pet. denied) (op. on reh’g), as an example of a more appropriate approach to the
evidentiary burden. In Abbott, the court determined that the city had conclusively
established for jurisdictional purposes that it was not refusing to produce public
information where the city’s jurisdictional evidence included three affidavits demonstrating
the city searched extensively for documents responsive to the request, officially requested
documents from named individuals, and produced to the requesting party all documents
it was able to locate and obtain. Id. at 323-24.
We will first address the third of Dolcefino’s requests (the November 30 request,
identified as “R-32” by Dolcefino). A close reading of Dolcefino’s live pleading, his second
amended petition, discloses that Dolcefino did not ask the trial court to direct Texas Tech
to produce this requested information via a writ of mandamus. So, that request was never
a subject of contention requiring action by the trial court or us. We are prohibited from
issuing advisory opinions and therefore will not render one regarding whether a supposed
conclusory statement regarding “R-32” lies within the trial court’s jurisdiction. See Brooks
v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004) (stating that a “judicial decision
reached without a case or controversy is an advisory opinion, which is barred by the
separation of powers provision of the Texas Constitution”).
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In regard to the October 9 request, Texas Tech informed Dolcefino that it had “no
documents” regarding the purported “mistreatment of anyone by the name of ‘Adam
Jones’ . . .” but provided that if Dolcefino meant “Adam James,” it had an incomplete
investigatory report. The university further explained that it “does not have a completed
investigation report regarding Leach’s mistreatment of Adam James as the completion of
the report was interrupted by the litigation ensuing upon Coach Leach’s termination.” This
supplemental information reveals that a report was started but not finished, and the
reason why it was not finished. As sparse as this additional data may be, it nevertheless
insulates Texas Tech’s reply from a potential attack as conclusory. See Duarte-Viera v.
Fannie Mae, No. 07-14-00271-CV, 2016 Tex. App. LEXIS 1854, at *4 (Tex. App.—
Amarillo Feb. 23, 2016, no pet.) (mem. op.) (defining a conclusory statement as one that
fails to provide the underlying facts to support the conclusion).
As to the October 11 request, the university responded that it “does not have the
ability to create a ‘General Ledger Funds and Expenses’ report specific to the Texas Tech
Football Team as you [Dolcefino] have requested . . . nor do we have any such
document.” Texas Tech’s responses were authenticated through an affidavit signed by
its associate general counsel, which was attached as evidence to its plea to the
jurisdiction. Dolcefino did not produce any evidence to refute Texas Tech’s evidence.
Through its responses, Texas Tech produced some evidence that it was not
“refusing” to provide public information to Dolcefino. We recognize that the evidence
provided by Texas Tech may lack the robustness of the evidence presented in Abbott.
However, as noted by the court in Abbott, “the PIA provides no guidance regarding the
efforts a governmental body must take to locate, secure, or make available the public
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information requested.” Abbott, 444 S.W.3d at 324-25. In the absence of legislative
guidance, we decline to conclude that the evidence presented by Texas Tech is
insufficient.
Because Texas Tech’s evidence showed that it was not “refusing” to produce
public information, and the evidence was not controverted by Dolcefino, there was no
disputed fact on the jurisdictional issue. We find that Texas Tech adequately asserted
and supported with evidence its position that the trial court lacked jurisdiction over these
remaining claims. Therefore, the trial court erred in denying Texas Tech’s plea to the
jurisdiction as to these claims.
Conclusion
We find that, because some of Dolcefino’s PIA requests were withdrawn as a
matter of law and because Texas Tech did not refuse to supply information in response
to the remaining requests before us, the existence of jurisdiction has been negated.
Therefore, we reverse the trial court’s order denying Texas Tech’s plea to the jurisdiction
over the challenged requests and we remand the cause to the trial court to resolve any
pending issues relating to other requests submitted by Dolcefino in a manner consistent
with this opinion.6
Judy C. Parker
Justice
6 As set forth in its Second Amended Plea to the Jurisdiction, Texas Tech did not contest the trial
court’s jurisdiction over two of Dolcefino’s PIA claims. Additionally, Dolcefino submitted other PIA requests
to Texas Tech in April of 2018. Any claims regarding those requests were not the subject of Texas Tech’s
plea to the jurisdiction and therefore were not before this Court for review.
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