Carlos Blanco, Jr. and Mariagloria Gonzalez v. City of Laredo ( 2008 )

MEMORANDUM OPINION
No. 04-07-00368-CV
Carlos BLANCO, Jr. and Mariagloria Gonzalez,
Appellants
v.
THE CITY OF LAREDO,
Appellee
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2004-CVQ-000760-D2
Honorable Raul Vasquez, Judge Presiding
Opinion by: Catherine Stone, Justice
Sitting: Catherine Stone, Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: April 9, 2008
AFFIRMED
Carlos Blanco, Jr. and Mariagloria Gonzalez appeal the trial court’s judgment challenging
the legal sufficiency of the evidence to support the trial court’s implied finding that the City of
Laredo did not violate the provisions of the Texas Public Information Act (“Act”).1 Based on its
1
… W e construe the appellants’ issue as a complaint regarding the legal sufficiency of the evidence because the
appellants request that we reverse the trial court’s judgment and render judgment in their favor. See French v. Moore,
169 S.W .3d 1, 15 (Tex. App.— Houston [1st Dist.] 2004, no pet.).
04-07-00368-CV
finding, the trial court concluded that Blanco and Gonzalez were not entitled to the declaratory or
mandamus relief they sought.2 Because the issues in this appeal involve the application of
well-settled principles of law, we affirm the trial court’s judgment in this memorandum opinion.
Although appellants requested findings of fact and conclusions of law and filed a notice of
past due findings of fact and conclusions of law, the recovery sought by appellants hinged on the trial
court favorably finding a violation of the Act. Appellants did not request that we abate the appeal
for the entry of findings and conclusions or assert that their absence required them to guess at the
reasons for the trial court’s judgment. See In re A.C.S., 157 S.W.3d 9, 15 (Tex. App.—Waco 2004,
no pet.) (noting abatement would be remedy); Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d
611, 614 (Tex. App.—Dallas 2003, pet. denied) (noting appellant is not harmed by absence of
findings and conclusions where single ground of recovery is asserted and appellant does not have
to guess at the reasons for the trial court’s judgment). Under these circumstances, therefore, findings
and conclusions necessary to support the judgment must be implied. G. Prop. Mgmt., Ltd. v.
Multivest Fin. Servs. of Tex., Inc., 219 S.W.3d 37, 47 (Tex. App.—San Antonio 2006). When, as
here, the appellate record includes the clerk’s and reporter’s records, these implied findings are not
conclusive and may be challenged for legal and factual sufficiency in the appropriate appellate court.
G. Prop. Mgmt., Ltd., 219 S.W.3d at 47.
Where a party bears the burden of proof and the factfinder fails to find for that party, there
are two inquiries for a reviewing court in considering a legal sufficiency challenge: first, the record
must be examined for evidence that supports the factfinder’s failure to find for the party with the
2
… Although the trial court denied the relief, it congratulated Blanco “for being inquiring, and for trying to know
more about our governmental function.” The trial court stated, “I think, if anything, we should have more people like
you that want to know.”
-2-
04-07-00368-CV
burden of proof; and second, if there is no evidence to support the failure to make a finding, then,
the entire record must be examined to see if the contrary proposition is established as a matter of law.
G. Prop. Mgmt., Ltd., 219 S.W.3d at 47. In any sufficiency review, the trier of fact is the sole judge
of the credibility of the witnesses and the weight to be given to their testimony. See City of Keller
v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). We may not substitute our own judgment for that of
the trier of fact, even if we would reach a different answer on the evidence. Id.
The appellants filed suit claiming that the City violated the Act by failing to provide complete
records in response to the following requests they made: (1) May 21, 2003, letter request on behalf
of Gonzalez to examine and inspect expenditures from the discretionary account for Mayor Elizabeth
“Betty” Flores for the months of September and October, 2002; (2) October 31, 2003, e-mail request
by Blanco for all “City of Laredo Credit Card Transactions” for seven listed individuals from January
of 2002 through October of 2003; and (3) November 22, 2003, e-mail request by Blanco for “detail
descriptions for credit card transactions” by City Manager Larry Dovalina, Mayor Flores, and Health
Department Director Dr. Hector Gonzalez and the corresponding “credit card receipts” from January
2002 through November of 2003.3 At a bench trial, evidence was presented that the City provided
the following responses to the requests: (1) an e-mail dated May 30, 2003, from Blasita Lopez, the
City’s Public Information and Telecommunications Manager, stating a schedule of date and times
for the inspection of the expenditures would be forthcoming, followed by a subsequent letter dated
June 11, 2003, from City Manager Larry Dovalina stating that Mayor Flores did not have a
3
… Although evidence was also presented regarding two requests made by John Castro, Castro was not a party
to the underlying lawsuit and testified in a deposition that he was supplied the information he requested after his second
request.
-3-
04-07-00368-CV
discretionary account;4 (2) a 117 page typewritten detail of credit card transactions;5 and (3) 1,100
pages of copies of credit card statements and receipts.6 During trial, appellants challenged the
absence of certain credit card receipts from the records provided, including: (1) a receipt for lodging
at La Posada Motor Hotel in Laredo; (2) a $52,000.00 charge by a hotel in Washington, D.C.;7 (3)
a purchase at The Gap clothing store by City Manager Larry Dovalina; and (4) a purchase by Mayor
Flores from the QVC shopping channel.8
Blanco testified that he never contacted the City after receiving the 1,100 pages of documents
to inquire about the missing receipts and admitted that he had no idea if those receipts existed or not.
Blanco further admitted that he had taken no further action to determine whether any such receipts
existed prior to filing his lawsuit. Finally, Blanco admitted that “[r]eceipts get lost all the time.”
4
… Lopez testified that she initially gathered some material that she believed was responsive to the request;
however, it was later determined that it did not relate to a “discretionary account” because the Mayor did not have such
an account.
5
… Lopez testified that the typewritten detail was provided in lieu of copies of statements because the statements
included personal charges that Lopez did not believe were responsive to the request for “City of Laredo Credit Card
Transactions.”
6
… Although evidence was introduced regarding a successful challenge to the cost of providing the records in
response to the third request, the dispute over the cost was not evidence that incomplete information was provided.
7
… Lopez testified that the expense was incurred in connection with an annual trip City representatives make
to W ashington, D.C. to meet with congressional representatives and agencies that provide grants and other support to
the City. In denying the City’s motion for directed verdict after the plaintiffs rested, the trial court expressed its
displeasure with the absence of this receipt, stating, “I certainly don’t see how the City could pay a $52,000 bill, without
a receipt for the same. ... I’m kind of worried about that, to be honest with you. That doesn’t mean that they didn’t
provide you all the information that they had. ... I want to know why the City does not have a receipt, or a verification,
of how they paid a $52,000.00 bill because that is not proper.” Before entering judgment, the trial court sent a letter to
the attorneys and requested that the City contact the hotel and ask for a detailed bill. At the hearing on the entry of
judgment, the City’s attorney informed the trial court that the hotel had been contacted but the hotel had changed
software and was unable to produce any billing records.
8
… In making its ruling, the trial court expressly stated its disapproval with the use of a governmental credit card
for personal purposes. The trial court stated, “And, if the City does not have a policy, it certainly should.”
-4-
04-07-00368-CV
Blasita Lopez testified that the City had produced all documents it possessed that were
responsive to the requests, and the receipts relating to the charges being challenged were not in the
City’s records. Lopez further testified that a receipt could be absent because the receipt was lost or
the establishment ran out of tape or otherwise did not have a receipt to provide.
The Act only compels disclosure of public information that is in existence and does not
require a government entity to prepare or assemble new information in response to a request. A &
T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex. 1995); Thompson v. Miller, No. 03-98-
00627-CV, 1999 WL 549205 at *2 (Tex. App.—Austin July 29, 1999, no pet.). Deferring to the trial
court’s assessment of the credibility of the witnesses and the weight to be given to the evidence, the
evidence is legally sufficient to support the trial court’s implied finding that the City had produced
all public information that existed in response to the appellants’ requests.9 The trial court’s judgment
is affirmed.
Catherine Stone, Justice
9
… As previously noted, although the trial court found that the City had produced all public information that
existed in response to the appellants’ requests, the trial court expressed its dissatisfaction with the City, stating in a letter:
The Plaintiffs requested some cash register receipts and the Court finds that the City did produce
copies of all cash receipts that they had in their possession. W hile the Court finds the City’s failure
to keep all receipts is questionable in light of the City’s duty to maintain authentic and proper records,
it does not find that the City’s failure was intentional or deliberate to violate the Texas Public
Information Act.
W hat the Court does find objectionable is the City’s apparent method of providing information on a
piecemeal basis and/or pretending to answer a request with their own interpretation of what something
may mean without asking for an explanation from the citizen requesting the information. Every citizen
has the right to ask about each and every public function and the City should be fully open and
agreeable to answer a citizen without placing any obstacles or barriers.
The court concluded:
In light of all of the above and this Court having heard so many Open Meeting and Public Information
cases regarding the City, the Court suggest[s] for the City to review its policies and perhaps modify
some of these procedures and require some of its employee and most of the elected and/or appointed
officials to attend one of the many seminars which are available on these particular topics. The Court
further suggests that the City go a step further and provide in house workshops to make sure that
everybody is complying with our Texas Public Information and Open Meeting Laws.
-5-