Harris County Appraisal District v. Integrity Title Company LLC and Marian Cones ( 2015 )

ACCEPTED
01-15-00145-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/17/2015 12:00:00 AM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00145-CV
Jn tbt FILED IN
1st COURT OF APPEALS
.1'irst ~ourt of r&ppeals HOUSTON, TEXAS
of ~exu 8/16/2015 3:42:56 PM
CHRISTOPHER A. PRINE
Clerk
Harris County Appraisal District
Appellant
v.
Integrity Title Company LLC and Marian Cones
Appellees
On Appeal from the 1515t Judicial District Court of Harris County, Texas
Trial Court Cause Number 2014-13474
The Honorable Mike Engelhart, Presiding
BRIEF OF APPELLEES
Bill Aleshire
State Bar No. 24031810
AleshireLaw, PC
700 Lavaca St., Suite 1400
Austin, Texas 78701
512 320-9155
512 320-9156 Facsimile
Bill@AleshireLaw.com
ATTORNEY FOR APPELLEES
ORAL ARGUMENT REQUESTED
CORRECTED IDENTIFY OF PARTIES AND COUNSEL
Appellee corrects HCAD's Identity of Parties and Counsel as to the name of
Appellees. The correct name of Appellees is Integrity Title Company, LCC and
Marian Cones.
PARTY AND RECORD REFERENCES
Appellant Harris County Appraisal District is referred to as "HCAD" and
Appellees Integrity Title Company, LLC and Marian Cones are referred to as
"Integrity Title."
Petitioner GHP will cite the record as follows:
Clerk's Record CR:(page)
Reporter's Record RR[vol]:(page)
Plaintiffs' Exhibits RR[vol] :PX(#)
Defendant's Exhibits RR[vol]:DX(#)
Appellees' Brief
Page I ii
TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES .................................................................................... iv
STATEMENT ON ORAL ARGUMENT ................................................................. v
ISSUES - REPLY POINTS PRESENTED ............................................................. vi
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF THE ARGUMENT........................................................................ 5
ARGUMENT.............................................................................................................7
STANDARD OF REVIEW ............................................................................ 7
REPLY POINT 1 (to Appellant's Issue No. 1):
REGARDLESS OF ANY RULING BY THE ATTORNEY GENERAL,
THE TRIAL COURT HAD JURISDICTION UNDER TPIA § 552.321(A)
TO DETERMINE WHETHER THE REQUESTED INFORMATION
(HCAD'S RECORD OF THE COUNTY CLERK'S DEED DOCUMENT
NUMBER & DATE) IS "PUBLIC INFORMATION," THE DISCLOSURE
OF WHICH IS SUBJECT TO MANDAMUS ................................................ 8
Section 552.321 confers jurisdiction regardless of Attorney General rulings ......... 8
El Paso v. Abbott does not apply to facts or pleadings of this case ....................... 10
Did the Attorney General Even Address the Records at Issue? ............................ 13
REPLY POINT 2 (to Appellant's Issue Nos. 2 and 3):
HCAD'S RECORD OF THE COUNTY CLERK'S DEED DOCUMENT
NUMBER & DATE IS NOT WITHIN THE SCOPE OF THE "MLS
EXCEPTION" TO DISCLOSURE, TPIA § 552.149 ................................... 14
Exceptions to disclosure, such as§ 552.149, are narrowly construed................... 14
Appellees' Brief
Page I iii
TPIA § 552.149 does not apply to Count Clerk deed information........................ 15
HCAD withholds deed information it did not obtain from a vendor. .................... 18
CONCLUSION....................................................................................................... 19
PRAYER............................. .................................................................................... 20
CERTIFICATE OF COMPLIANCE.......................................................................20
CERTIFICATE OF SERVICE ................................................................................ 21
Appellees' Brief
Page I iv
INDEX OF AUTHORITIES
TEXAS CASES
City ofFort Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.-Austin 2002) ................ 14
El Paso v. Abbott, 444 S.W.3d 315 (Tex. App. -Austin 2014 pet. denied) .....10, 11
Houston lndep. Sch. Dist. v. Houston Chronicle Publishing Co., 798 S.W.2d 580
(Tex. App.- Houston [1st Dist.] 1990, writ denied) ............................................... 13
Jackson v. Texas Dept. ofPublic Safety, 243 S.W.3d 754 (Tex. App.--Corpus
Christi 2007 pet. denied)... .................................................................................... 7, 8
Kallinen v. City ofHouston, 462 S.W.3d 25 (Tex. 2015) ....................................... 10
State Dept. ofHighways & Pub. Transp. v. Gonzales, 82 S.W.3d 322
(Tex. 2002) ................................................................................................................ 7
Texas Appleseed v. Spring Brank !SD, 388 S.W.3d 775 (Tex. App.- Houston (1 st
Dist.] 2012) .............................................................................................................. 14
Texas Dept. ofPub. Safety v. Gilbreath, 842 S.W.2d 408
(Tex. App.- Austin 1992)......................................................................................... 9
Thomas v. Cornyn, 71 S.W.3d 473 (Tex. App. -Austin 2002) ................................9
STATUTES
Tex. Gov't Code§ 552.00l(a) ..................... ............................................................ 14
Tex. Gov't Code § 552.149 ....................................................................... .......passim
Tex. Gov't Code§ 552.321 .............................................................................. passim
LEGISLATIVE HISTORY
Senate State Affairs Comm., Bill Analysis, Tex. H.B. 2188,
goth Leg., R.S. (2007) .................................................................................... 17
Appellees ' Brief
Page Iv
STATEMENT ON ORAL ARGUMENT
Appellee requests oral argument only because Appellant requested oral
argument, but with the record and issues of law as clear as they are, this case might
well be decided without oral argument. If oral argument is deemed appropriate,
Appellee asks to be included.
ISSUES PRESENTED - REPLY POINTS
REPLY POINT 1 (to Appellant's Issue No. 1):
REGARDLESS OF ANY RULING BY THE ATTORNEY GENERAL, THE
TRIAL COURT HAD JURISDICTION UNDER TPIA § 552.32l(A) TO
DETERMINE WHETHER THE REQUESTED INFORMATION (HCAD'S
RECORD OF THE COUNTY CLERK'S DEED DOCUMENT NUMBER &
DATE) IS "PUBLIC INFORMATION," THE DISCLOSURE OF WHICH IS
SUBJECT TO MANDAMUS.
REPLY POINT 2 (to Appellant's Issue Nos. 2 and 3):
HCAD'S RECORD OF THE COUNTY CLERK'S DEED DOCUMENT
NUMBER & DATE IS NOT WITHIN THE SCOPE OF THE "MLS
EXCEPTION" TO DISCLOSURE, TPIA § 552.149.
Appellees' Brief
Page I vi
STATEMENT OF FACTS
Appellee provides this Statement of Facts to supplement and to correct
errors in Appellant's Statement of Facts.
Marian Cones, on behalf of Integrity Title Company, LLC. submitted a
public information request to the Harris County Appraisal District (HCAD) for
public information contained in HCAD's computers. CR 135, Finding of Fact 1.
Specifically, Integrity Title asked solely for "a list in electronic format showing the
HCAD account number, the deed transaction date, and the County Clerk's
document number (a/k/a 'deed number')." (Hereafter, the "requested
information".) Id. This is the information at issue in this case.
HCAD uses public funds, through a contract with Propertyinfo, to collect the
requested information, in addition to other information related to sales prices of
property sold within Harris County. CR 135, Finding of Fact 2. The deed
document number & date is obtained from the Harris County Clerk's real property
records. CR 136, Finding of Fact 3. Unlike sales price, property description and
characteristics that HCAD's vendor obtains from private sources, the deed
document number/date is generated by and owned by the Harris County Clerk as
Appellees' Brief
Page I l
1
part of the clerk's public records. Id.
Ironically, HCAD's website discloses other information about real property
deed transactions that it receives from Propertylnfo, including (a) Grantee's name
and address; (b) Grantor' s name; (c) HCAD account number; (d) Lot & block
number of property. See CR: 136 (Finding of Fact 7; RR2: lOl(Lines 17-20);
103-04 (Testimony ofHCAD witness Kelly Sherbert); RR3: PX 4 (Admissions 10
thru 19); (See RR3: PX6 (at page "Cones-0041-44).
The appraisal district account number and County Clerk's deed
document/date (for each account) is readily available online from appraisal
districts throughout Texas-except HCAD. RR3: PX 6; RR2: 50 (lines 12-18).
(Samples of CAD online data showing deed document number/date from examples
of the following counties: RR3: PX 6, Bastrop (Cones -001), Bexar (Cones -003),
Brazoria (Cones -004), Brazos (Cones -006,7), Cameron (Cones -009), Chambers
(Cones -0010), Collin (Cones -0012), Comal (Cones -0014), Dallas (Cones -0017),
Denton (Cones -0021), Fort Bend (Cones -0023), Galveston (Cones -0024),
Guadalupe (Cones -0026), Hays (Cones -0028), Liberty (Cones -0032), Lubbock
(Cones -0033), Montgomery (Cones -0034), Tarrant (Cones -0036, 37), Travis
The County Clerk creates and prints the deed document number and
date on the deed when filed, usually in the upper right comer of the first page of
the document. An example can be found at RR4: 161.
Appellees' Brief
Page 12
(Cones -0039), and Waller (Cones -0040)).
HCAD refused to supply the requested information and sought a ruling by
the Attorney General. CR 136, Finding of Fact 4. Integrity Title disagrees with
the statement in HCAD's Statement of Facts (at 1), that the Attorney General ruled
that the requested information must be withheld from disclosure, because, as the
trial court pointed out, that ruling (OR2014-00904) "is not very closely related to
what the actual dispute is .... " CR: 137, Conclusion of Law 4. The Attorney
General relied on HCAD'S erroneous description of what information was
requested which implied, for example, that sales price information was being
requ~sted. RR3: PX2 at 2 (noting HCAD's submission to the Attorney General of
an entire "Property Transaction Report" received by Property Info "from a private
multiple listing service"); RR3: PX3 (OR2014-00904 at 2-3 ("In this instance, you
[HCAD] state the submitted information relates to real property sales and was
provided to the district by a private entity .... Based on your representations and our
review, we find the district must withhold the submitted information under section
552.149(a) of the Government Code.").
HCAD' s ruling request to the Attorney General obfuscated what specific
information Integrity Title was actually requesting and wrongly implied to the
Attorney General that broader "deed transaction information" on the vendor's
"Property Transaction Report" (which does include confidential MLS sales price
Appellees' Brief
Page 13
information) was at issue. RR3: PX2. HCAD's letter request never clarified that
the only information at issue was HCAD's records of the County Clerk's deed
document number/date. Id. Likewise, the Attorney General' s ruling never
mentioned the specific information at issue nor the fact that the information at
issue was created by and derived from the County Clerk's office (not MLS), and
relied on HCAD's misleading representations. RR3: PX3 (OR2014-00904 at 2-3.
The trial court not only determined that HCAD's record of the Harris
County Clerk's deed document number/date was public information, and not
confidential under section 552.149, the court found that the Attorney General
ruling "is not very closely related to what the actual dispute is ...." CR: 137
(Conclusion of Law 4).
The court said:
In taking into consideration the Attorney General' s ruling (OR2014-
00904) that the requested information is not subject to disclosure, the
Court finds that the description of the disputed information in
OR2014-9904 is not very closely related to what the actual dispute is,
i.e., a dispute about information that comes from a publicly funded
office (the Harris County Clerk's Office), then goes through the
machinations of a private company under contract with public funds
and then sold back to another governmental entity, the Harris County
Appraisal District.
Appellees' Brief
Page 14
SUMMARY OF THE ARGUMENT
The trial court correctly denied HCAD's plea to the jurisdiction. Pursuant to
TPIA section 552.32l(a), the trial court has jurisdiction to determine whether the
requested information was "public information" for which mandamus should issue,
regardless of how, or even whether, the Attorney General ruled on that issue.
HCAD is clearly wrong in asserting that the court loses jurisdiction "because
HCAD followed the Attorney General's directive [the open record ruling] ."
The information Integrity Title requested from HCAD's computer records
was merely the deed document number(s)--created and assigned to each deed by
the Harris County Clerk in the Clerk's public records- and the deed/sale date(s)
for each parcel of real property on HCAD's appraisal records. In the court's ruling
(RR2: 145], the trial court framed well the issue in this case, about whether Section
552.149, the "MLS Exception" to disclosure, makes the requested information
confidential. The court said:
It is not a case about MSL sales data or privately generated
information. It's a dispute about information that comes from a
publicly funded office [the Harris County Clerk's Office] , then goes
through the machinations of some private company [PropertyInfo] and
then sold back to another governmental entity [HCAD].
RR2: 145
Appellees' Brief
Page 15
Although, the deed document number and date is undeniably public
information if obtained from the County Clerk-and HCAD has never asserted
otherwise-HCAD argues that it morphs into confidential information because
HCAD paid a vendor to go obtain that information from the County Clerk and
provide it to HCAD. The fact that HCAD's contractor also obtains and provides
HCAD with other information from other sources, including MLS sales price and
property characteristics, is irrelevant because Integrity Title has not requested any
of that other information.
The legislative history of section 552.149 indicates that after prev10us
Attorney General rulings that MLS-obtained data (such as sales prices) became
subject to public disclosure in the hands of the appraisal districts, MLS refused to
provide this helpful information to appraisal districts anymore. So, the Legislature
enacted TPIA section 552.149-the "MLS Exception"-so that appraisal districts
could still obtain confidential privately-generated information, such as sales prices,
pictures of the property, descriptions (such as "2 bedroom/2 bath") and
characteristics (such as "swimming pool"). This MLS Exception to disclosure
does apply to information that Integrity Title has not requested, but the exception
does not apply to the information Integrity Title did request.
HCAD urges an enormously broad interpretation of section 552.149 that
would make confidential every bit of property information HCAD purchases from
Appellees' Brief
Page 16
any source with public funds, regardless of the original source or nature of the
information obtained. Under HCAD's interpretation of section 552.149, if HCAD
itself paid the County Clerk for a copy of a deed, HCAD' s copy of that public
record would be confidential information.
HCAD's interpretation is at odds with the mandate to narrowly interpret
exceptions to disclosure in the TPIA. Section 552.149 is applicable to privately-
generated information, such as sales prices, and it is inapplicable to government-
generated information, such as deed document number, even if obtained by
HCAD' s vendor from the County Clerk' s public records.
APPELLEES'ARGUMENT
STANDARD OF REVIEW
Because this appeal is based on a challenge to the trial court's subject-matter
2
jurisdiction under Tex. Gov't Code § 552.321, which is a question of law, this
Court reviews the trial court's ruling de nova. State Dept. of Highways & Pub.
Transp. v. Gonzales, 82 S.W.3d 322, 327 (Tex. 2002). Likewise, this Court
reviews the question of law of the trial court' s interpretation of Tex. Gov't Code§
552.149(a) de nova, narrowly interpreting such an exception to disclosure and
liberally construing the TPIA in favor of disclosure. Jackson v. Texas Dept. of
2
For brevity, references to Tex. Gov't Code ch. 552 and its sections
will be to the Texas Public Information Act as the "TPIA."
Appellees' Brief
Page 17
Public Safety, 243 S.W.3d 754, 757 (Tex. App.-Corpus Christi 2007 pet. denied)
("The TPIA directs the courts to liberally construe its provisions in favor of
disclosure and to narrowly interpret the exceptions to disclosure. [citations
omitted] .... Under the TPIA, determining whether an exception to disclosure
applies is a question of law.").
REPLY POINTS
REPLY POINT 1 (to Appellant's Issue No. 1):
REGARDLESS OF ANY RULING BY THE ATTORNEY GENERAL, THE
TRIAL COURT HAD JURISDICTION UNDER TPIA § 552.32l(A) TO
DETERMINE WHETHER THE REQUESTED INFORMATION (HCAD'S
RECORD OF THE COUNTY CLERK'S DEED DOCUMENT NUMBER &
DATE) IS "PUBLIC INFORMATION," THE DISCLOSURE OF WHICH IS
SUBJECT TO MANDAMUS.
Section 552.321 confers jurisdiction regardless of Attorney General rulings
Section 552.321 's grant of jurisdiction to the court contains nothing that
suggests the Court lacks jurisdiction based on why, i.e. , for what reason, the
governmental body refuses to supply the requested public information. Even if the
governmental body refuses to supply public information because the Attorney
General ruled an exception to disclosure applied, the Court still has jurisdiction to
determine whether the exception to disclosure applies. The case law is
Appellees ' Brief
Page 18
indisputable and clear that courts have jurisdiction under section 552.321 when a
governmental body withholds public information, regardless of whether the
Attorney General was asked for a ruling and regardless of what that ruling was.
In fact, long-held case law makes this very clear. "Section 552.321 confers
upon the trial court the authority to issue a writ of mandamus in three
circumstances..." Thomas v. Cornyn, 71 S.W.3d 473, 481 (Tex. App. -Austin
2002 no pet) (emphasis added). The second circumstance listed by the Court was
3
"where the governmental body refuses to supply public information." Id.
In Thomas, the Court explicitly rejected the same claim that HCAD makes
here: that if the Attorney General rules information is not subject to disclosure, the
Court lacks jurisdiction under Section 552.321(a). "A requestor may bring a
mandamus action regardless of whether an attorney general' s opinion has been
requested or despite the issuance of an adverse attorney general's opinion that
favors the withholding of the information." Thomas v. Cornyn, 71 S.W.3d 473
(Tex. App.-Austin 2002 no pet.) (citing Texas Dept. of Pub. Safety v. Gilbreath,
842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ)) (emphasis added).
If any doubt remained about whether courts have jurisdiction under section
3
The other two circumstances are ( 1) where a governmental body
refuses to request an attorney general' s decision, and (3) where a governmental
body refuses to supply public information that the attorney general has determined
is public information not excepted from disclosure. Id.
Appellees' Brief
Page 19
552.321 to determine whether information must be disclosed- regardless of
whether or how the Attorney General might have ruled- all doubt was eliminated
by a more recent decision of the Texas Supreme Court. In Kallinen v. City of
Houston, the City of Houston argued that the trial court lacked jurisdiction until the
Attorney General ruled. But the Supreme Court said:
Further, the City's view of Section 552.321(a) would relegate
mandamus relief to compelling a governmental body to request an
Attorney General's decision and then comply with it. The correctness
of that decision would be unreviewable. But we have reviewed the
Attorney General' s rulings. [citations omitted]. And we have
interpreted PIA exceptions without a ruling by the Attorney General.
[citations omitted].
Kallinen v. City ofHouston, 462 S.W.3d 25, 28 (Tex. 2015).
El Paso v. Abbott does not apply to facts or pleadings of this case
HCAD's Brief, at 7, wrongly cites El Paso v. Abbott, 444 S.W.3d 315, 327
(Tex. App.-Austin 2014 pet. denied) for the proposition that HCAD can withhold
the information "because HCAD followed the Attorney General's directive"
(referring to the ruling OR2014-00904). Such an interpretation of section
552.321(a)-that the court loses jurisdiction if the governmental body complies
with the Attorney General's ruling and withholds public information- is
repudiated by the Supreme Court's opinion in Kallinen v. City of Houston. The
court has jurisdiction to determine if the withheld information is public information
subject to disclosure, regardless of how the Attorney General ruled.
Appellees ' Brief
Page 110
HCAD misreads the circumstances and the actual holding in the El Paso
case. In El Paso, there were two types of information at issue: (1) emails between
Council members that the City, at first, resisted disclosing despite the Attorney
General's ruling that the City must release those emails, and (2) the personal email
addresses the Council members used for the emails about official City business,
that the Attorney General ruled were not subject to disclosure and could be
withheld. El Paso v. Abbott, 444 S.W.3d at 327. So, two of the circumstances in
section 552.321(a) were at issue, (1) whether the City refused to disclose
information the Attorney General considered subject to disclosure (the emails
between Council members), and (2) whether the City refused to disclose public
information, regardless of how the Attorney General ruled (the email addresses).
While the lawsuit was pending, the City announced it would change its
position and comply with the ruling and asserted with affidavits that it had
disclosed all of the emails between the Council members. El Paso v. Abbott, 444
S.W.3d at 317 ("During the pendency of its suit, however, the City decided to
comply in full with the attorney general's decision and produced to Allala the
responsive information in its possession."). That change of circumstances is why
the Court held that the City was no longer "refusing" to disclose information that
the Attorney General ruled should be disclosed. El Paso v. Abbott, 444 S.W.3d at
324.
Appellees ' Brief
Page 111
This part of the El Paso opinion is irrelevant to the present HCAD case
because the Attorney General did not hold that information should be disclosed by
HCAD. Instead, Integrity Title asserts, and the trial court found, that HCAD is
refusing to supply "public information" even though the Attorney General-
supposedly- ruled the requested information was not subject to disclosure. The
court has jurisdiction to make that determination.
As to the second issue in El Paso, the disclosure of the email addresses, the
Court suggested that the requestor's original petition had not included a claim that
the city withheld public information, only that the city had withheld information
the Attorney General had indicated should be disclosed, which the Court found
4
they were no longing withholding. That pleading issue was disputed and the
subject of briefing to the Supreme Court in the petition for review (which was
denied). No such pleading issue exists in this case. CR 7 (Integrity Title's
Original Petition pleading, "Pursuant to TPIA section 552.321, Integrity Title seeks
a writ of mandamus from the Court to compel HCAD to provide the public
information requested by Integrity Title."). (emphasis added).
The Court of Appeals opinion in El Paso, is not to be read for the
4
Counsel for Integrity Title, Bill Aleshire, in this case was also counsel
for the requestor/intervenor, Stephanie Allala, in the El Paso case and is very
familiar with the facts, issues, and pleadings in that case.
Appellees' Brief
Page I 12
proposition asserted by HCAD, that if the Attorney General rules that public
information can be withheld, then a trial court lacks jurisdiction to consider
whether the Attorney General was correct. Even if that had been the holding in El
Paso, such a holding would be directly at odds with the Supreme Court's holding
in Kallinen. The bottom line is that the El Paso opinion did not address whether
the email addresses were "public information" (regardless of the Attorney
General's opinion) because the Court did not feel that issue had been pled.
Did the Attorney General Even Address the Records at Issue?
Even if HCAD were correct, that the court lacks jurisdiction under section
552.321 ifHCAD withholds public information because the Attorney General says
they can, in this case, it is not clear that the ruling by the Attorney General made
such a clear ruling on the requested information, and, regardless, the trial court was
bound to follow such a ruling. It is a long-held legal maxim in Texas that Attorney
General opinions are given consideration by the Courts, but the Courts are not
obligated to accept the Attorney General opinions. "While such opinions are to be
given great weight, they are not binding upon a court of law." Houston Indep. Sch.
Dist. v. Houston Chronicle Publishing Co., 798 S.W.2d 580, 588 (Tex. App.-
Houston (1st Dist.] 1990, writ denied). Even after an Attorney General ruling, the
trial court maintains jurisdiction to determine if HCAD refused to supply public
information without legal excuse for doing so. Furthermore, in this case, the trial
Appellees' Brief
Page I 13
court determined (Conclusion of Law 4) that the Attorney General's ruling did not
even address the real issue of whether HCAD' s record of the County Clerk's deed
document number/date is subject to disclosure.
REPLY POINT 2 (to Appellant's Issue Nos. 2 and 3):
HCAD'S RECORD OF THE COUNTY CLERK'S DEED DOCUMENT
NUMBER & DATE IS NOT WITHIN THE SCOPE OF THE "MLS
EXCEPTION" TO DISCLOSURE, TPIA § 552.149.
Exceptions to disclosure, such as§ 552.149, are narrowly construed
As an initial matter of statutory interpretation, TPIA section 552.00l(a) says,
" it is the policy of this state that each person is entitled, unless otherwise
expressly provided by law, at all time to complete information about the affairs of
government and the official acts of public officials and employees." Tex. Gov't
Code section 552.00I(a). Courts have consistently held: "To that end, the act
must be liberally construed in favor of granting a request for information and the
exceptions must be narrowly construed." Texas Appleseed v. Spring Brank !SD,
388 S.W.3d 775, 778 (Tex. App.- Houston [Pt Dist.] 2012)(citing TPIA section
552.00I(b) requiring act to be liberally construed in favor of granting request for
information); City ofFort Worth v. Cornyn, 86 S.W.3d 320, 329 (Tex. App.-Austin
2002) (holding Texas courts have consistently narrowly construed the type of
information that may be withheld under the act's exceptions). (emphasis added).
Appellees' Brief
Page 114
So, the "MLS exception" to disclosure in section 552.149 is be narrowly
5
construed. HCAD gives an overly broad reading of the MLS Exception. Section
552.149 does not, as HCAD argues, "state[] that the information received from a
private entity, such as [Propertylnfo], under Chapter 6 of the Tax Code is excepted
from disclosure." HCAD's Brief at 10. Section 552.149 does not make
confidential all information HCAD receives from a paid contractor. If it did,
HCAD could not publicly disclose, as it does, its own account number, the date of
a deed transaction, the legal description of the property, the property address, or
the grantor/grantees names, for example. Note also that HCAD publicly discloses
details about the property such as land area; total living area, map location,
exemptions by type; year built, quality, foundation type, heating/AC, room and
bath total, even whether it has a fireplace. RR3: PX6 (at page "Cones-0041-44).
TPIA § 552.149 does not apply to Count Clerk deed information
Neither by its language nor in reviewing its legislative purpose does section
552.149 apply to information obtained from public records of the County Clerk's
office. By its wording, section 552.149 does not apply to all information HCAD
obtains about real property, even from contractors; it applies only to "real property
sales prices, descriptions, characteristics, and other related information" that
5
A Westlaw search revealed no reported appellate court opinions, only
Attorney General letter rulings, interpreting section 552.149(a).
Appellees' Brief
Page 115
HCAD receives from contractors. On its face, that would not include the deed
document number created by the County Clerk and stamped onto each deed filed in
the Clerk's Office, even if a copy of that public record is provided to HCAD by its
contractor.
Section 552.149 makes confidential only:
1. "sales prices" - Integrity Title has not requested sales price
information;
2. "descriptions" - Integrity Title has not requested a description
of any real property. Revealing a deed document number/date does not reveal a
description of the property.
3. "characteristics" Integrity Title has not requested
characteristics of any real property. Revealing a deed document number/date does
not reveal characteristics of the property.
4. "other related information" - The County Clerk's deed
document number is not related to the sales price or property description or
characteristics. This phrase is to be narrowly construed and confined to the
preceding "sales price" and description/characteristics of the property that the
private entity creates or owns. The deed document number/date is not created by
or owned by Propertyinfo, and certainly the HCAD account number is not.
In addition, the legislative history of the MLS Exception to disclosure
Appellees' Brief
Page I 16
reveals a narrow purpose for this exception; it was merely intended to "allow[]
relationships between MLSs and appraisal districts to continue." See OR2014-
00904 at 2; RR3: PX 3 at 2 (" ... the purpose of this statute is to allow relationships
between the MLS and appraisal districts to continue."). Section 552.149 was
added to the Government Code in 2007 by H.B. 2188, and the Bill Analysis,
"Background and Purpose" (in its entirety) says:
BACKGROUND AND PURPOSE
Many privately-owned and operated multiple listing services (MLS)
provide information to appraisal districts regarding the sale of real
property. This is done not as a requirement, but on a voluntary basis.
The relationship benefits both parties: (1) appraisal districts are aided
in their valuation of real property and (2) multiple listing services
benefit from more complete property tax records, including square
footage, and other property information retained by appraisal districts.
Recently, the Attorney General issued an opinion indicating
information provided by an MLS to an appraisal district through a
confidentiality agreement is nonetheless subject to open records
statutes. As a result, many multiple listing services have discontinued
providing sales information to appraisal districts.
C.S.H.B. 2188 will exempt real property sales prices, descriptions,
characteristics, and other related information provided by a private
entity to an appraisal district from disclosure under open records laws
thereby allowing relationships between MLSs and appraisal districts
to continue.
Senate State Affairs Comm., Bill Analysis, Tex. H.B. 2188, 80111 Leg., R.S.
(2007). (emphasis added).
HCAD errs by interpreting the MLS Exception so broadly to apply to
Appellees' Brief
Page 117
information obtained from the County Clerk's public records. Such records are not
included in the description of information to which the language of section 52.149
says it applies. Section 552.149 was merely intended to permit appraisal districts
to get sales price information and other property information from MLS that MLS
real-estate agents collected, created, and provided to MLS without making that
proprietary MSL data subject to disclosure to the public. None of the information
at issue in this case (the HCAD account number and County Clerk's deed
document number/date) was created by, or owned by, Property Info, an MLS, or
any private entity.
HCAD withholds deed information it did not obtain from a vendor
As noted above, Section 552.149 is limited to privately generated
information (such as sales prices) that HCAD "received from a private entity ...
under Chapter 6, Tax Code ...." Chapter 6, specifically section 6.11 , of the Tax
Code is merely the appraisal district's general purchasing and contracting
authority. So, section 552.149 applies only to information of the limited character
described in section 552.149 (basically private-generated information such as
"sales prices, descriptions, characteristics....") that HCAD contracts to obtain, not
to information HCAD obtains or receives without such a contract.
But at trial, it was discovered that HCAD also withheld County Clerk deed
document numbers in HCAD's records that HCAD obtained voluntarily from
Appellees' Brief
Page I 18
taxpayers providing copies of deeds or otherwise. RR2: 93, 97, (Testimony of
HCAD witness Kelly Sherbert, testifying that "probably 20 to 30 percent" of
HCAD's files with the County Clerk's deed document number in them were
obtained without a contract, e.g., clearly outside the scope of section 552.149. This
is an important fact that HCAD did not disclose to the Attorney General in its
request for a ruling. HCAD is without any legal excuse whatsoever for having
refused to provide the accounts with deed document numbers that were not
provided by Propertylnfo.
CONCLUSION
The trial court's judgment should be affirmed. The court has jurisdiction
under TPIA section 552.321(a}-regardless of any Attorney General open records
disclosure ruling-to mandamus HCAD because HCAD refuses to provide "public
information," i.e., the HCAD files showing the County Clerk's deed document
number and date. The information Integrity Title requested from HCAD is not
information within the scope of section 552.149(a), the MLS Exception to
disclosure, especially under proper rules for interpreting the Texas Public
Information Act.
Appellees' Brief
Page j 19
PRAYER
For these reasons, Appellees ask this Court to affirm the trial court's
judgment.
&~ Bill Aleshire
Texas Bar No. 24031810
AleshireLAW, P.C.
700 Lavaca, Suite 1400
Austin, Texas 78701
Telephone: (512) 320-9155
Facsimile: (512) 320-9156
Bill@AleshireLaw.com
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with TRAP Rule 9.4 and contains 4,217
words in Times New Roman typeface of 14-point.
Isl Bill Aleshire
Bill Aleshire
Appellees' Brief
Page I 20
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing document was served on the parties,
through counsel of record, via e-file on August 16, 2015.
Appellant's Counsel
Donna L. Johnson
State Bar No. 24068896
DJ ohnson@olsonllp.com
Andrea Chan
State Bar. No. 04086600
AChan@olsonllp.com
OLSON & OLSON
Wortham Tower, Suite 600
2727 Allen Parkway
Houston, Texas 77019-2133
Telephone: (713) 533-3800
Fax: (713) 533-3888
Isl Bill Aleshire
Bill Aleshire
Appellees' Brief
Page 121