Robert Walter Bonner v. City of Burleson Texas ( 2011 )


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  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-11-00060-CV
    ROBERT WALTER BONNER,
    Appellant
    v.
    CITY OF BURLESON TEXAS,
    Appellee
    From the 413th District Court
    Johnson County, Texas
    Trial Court No. C201000638
    DISSENTING OPINION
    In this proceeding, Robert Walter Bonner, the appellant, is acting as his own
    counsel. This is not Bonner’s first rodeo. He has also appeared in this Court in the
    following proceedings: 10-09-00120-CR, Bonner v. State (represented by counsel in the
    appeal of his criminal conviction; issues in his criminal appeal included 20 allegations of
    ineffective assistance of counsel, some of which were directed to the document sought
    to be disclosed in this proceeding), 10-10-00011-CV, In the Matter of the Marriage of
    Bonner (private divorce; Bonner representing himself on appeal), and 10-10-00383-CR,
    Bonner v. State (appeal of post conviction pro se petition to disclose grand jury
    testimony; Bonner representing himself on appeal).
    THE SUMMARY JUDGMENT ISSUE
    In this proceeding, Bonner argues that the trial court erred in granting the City of
    Burleson’s motion for summary judgment. Even after Bonner was notified by the City’s
    brief that the trial court did not grant the City’s motion for summary judgment, Bonner
    stayed with the same issue and did not request to supplement his brief with a new issue
    or otherwise amend his brief. The only issue presented by the appellant is immaterial
    because the trial court did not grant the City’s motion for summary judgment. I would,
    therefore, overrule Bonner’s issue and affirm the trial court’s judgment.
    THE PLEA TO THE JURISDICTION
    Notwithstanding the briefing deficiency that was drawn to his attention but
    remains uncorrected, and if I were to give Bonner’s trial court pleadings and his
    appellate briefing a more expansive reading, some would say a broad interpretation, I
    could not, as the Court does, hold that the issue of standing raised by the City is not
    properly a jurisdictional issue in this case.
    Under the very broadest of interpretations, this is an appeal of a plea to the
    jurisdiction granted against Bonner. The underlying proceeding is a bit unusual. It is a
    mandamus proceeding brought under a specific provision of the Government Code.
    Bonner alleges the City of Burleson has failed to comply with the Texas Public
    Information Act. See TEX. GOV’T CODE ANN. Ch. 552 (West 2004 and Supp. 2010).
    Bonner v. City of Burleson                                                            Page 2
    To attorneys and judges who have not dealt with this type proceeding before, it
    may be helpful to discuss the nature of the proceeding in the trial court and its
    differences from the typical mandamus proceeding that an appeals court deals with.
    This is an appeal of the mandamus action which was initiated in the trial court. An
    action for a writ of mandamus initiated in the trial court is a civil action subject to
    appeal as any other civil suit. See Anderson v. City of Seven Points, 
    806 S.W.2d 791
    , 792
    n.1 (Tex. 1991); Simmons v. Kuzmich, 
    166 S.W.3d 342
    , 345 (Tex. App.—Fort Worth 2005,
    no pet.); Harris v. Jones, 
    8 S.W.3d 383
    , 385 (Tex. App.—El Paso 1999, no pet.); Dallas Area
    Rapid Transit v. Dallas Morning News, 
    4 S.W.3d 469
    , 473 (Tex. App.—Dallas 1999, no
    pet.); Univ. of Tex. Law Sch. v. Tex. Legal Found., 
    958 S.W.2d 479
    , 481 (Tex. App.—Austin
    1997, no pet.).
    If relevant to the appeal, we would review the trial court's findings of fact and
    conclusions of law in accordance with the standards generally applicable to a trial
    court's findings and conclusions. See 
    Anderson, 806 S.W.2d at 794
    n.2; 
    Simmons, 166 S.W.3d at 345-346
    ; Dallas Area Rapid 
    Transit, 4 S.W.3d at 473
    ; Tex. Legal 
    Found., 958 S.W.2d at 481
    . That is, we review findings of fact for legal and factual evidentiary
    support, and we review conclusions of law de novo. 
    Simmons, 166 S.W.3d at 346
    ; Dallas
    Area Rapid 
    Transit, 4 S.W.3d at 473
    ; Tex. Legal 
    Found., 958 S.W.2d at 481
    . We do not
    apply the abuse of discretion standard applicable to mandamus actions that originate in
    our appellate courts. 
    Simmons, 166 S.W.3d at 346
    ; 
    Harris, 8 S.W.3d at 385
    .
    Thus, these mandamus proceedings under the Texas Public Information Act are
    basically like regular lawsuits but are purely creatures of the statute that authorizes the
    Bonner v. City of Burleson                                                           Page 3
    suit and only to that extent is sovereign immunity waived. The statute is designed to
    compel compliance with a specific request for information.
    In this case, the primary request for public information that is being addressed is
    a request submitted by email on May 5, 2008 from a sender identified only as “Texas
    Brat.” I will address that specific request and the standing issue first. In discussing this
    issue, I will first ignore Bonner’s allegation that Texas Brat was a person hired by his
    family as a private investigator and was thus his agent in making the request. Only
    after addressing the Texas Brat in isolation will I discuss the slight modification of the
    analysis if Texas Brat is Bonner’s agent. I will then address the jurisdictional issue of
    the three other Texas Public Information Act requests Bonner made.
    Texas Brat
    There was no way for the City to have known that Texas Brat was an agent of
    Bonner, as he alleged in his suit for writ of mandamus, when the request was made by
    Texas Brat. As discussed above, I will address the “agent of Bonner” aspect of the
    request in a moment. But first I must directly address the issue of whether Bonner has
    standing to bring a mandamus petition to compel the City to respond to a request made
    by Texas Brat. Texas Brat, as the person that made the request, i.e. the “requestor,” is
    the only person who would have standing to complain about the City’s alleged failure
    to comply with the Texas Public Information Act.          See TEX. GOV’T CODE ANN. §§
    552.003(6) and 552.321(a) (West 2004). Texas Brat is the only “requestor” that can assert
    that he/she made a request and that the City failed to comply with the request. 
    Id. Bonner v.
    City of Burleson                                                            Page 4
    In this regard, there are two important comparisons to be made to more
    traditional litigation. First, it is only an aggrieved or injured party that can bring a
    lawsuit. In regard to the May 5, 2008 request from Texas Brat, only Texas Brat has a
    complaint about the City’s alleged failure to comply with the Act. Thus, only Texas
    Brat is considered the “requestor” for purposes of the statute. Second, the process of
    first making a request for the disclosure of information is the equivalent of an
    administrative remedy that must be exhausted before the person seeking the
    information may proceed to file the mandamus petition. See Subaru of Am. v. David
    McDavid Nissan, Inc., 
    84 S.W.3d 212
    , 221 (Tex. 2002) (“Typically, if an agency has
    exclusive jurisdiction, a party must exhaust all administrative remedies before seeking
    judicial review of the agency's action. Until then, the trial court lacks subject matter
    jurisdiction and must dismiss the claims within the agency's exclusive jurisdiction.”
    (citation omitted)).
    And it is critical to establish the identity of the requestor because compliance
    with other provisions of the Act requires communication with the requestor.
    Specifically, when the governmental body requests an Attorney General opinion, the
    governmental body must provide to the “requestor” a written statement and a copy of
    the communication to the Attorney General. TEX. GOV’T CODE ANN. § 552.301(d)(1)and
    (2) (West Supp. 2010). Further, when the Attorney General renders its opinion, a copy
    must be provided to the “requestor.” 
    Id. § 552.306(b).
    It is not enough that somebody
    in the universe made the request to then authorize another individual to bring the
    mandamus petition; it is necessary that a person must have made the request before
    Bonner v. City of Burleson                                                        Page 5
    that person is entitled to bring the petition. Without this requirement and implicit
    limitation of standing to the “requestor,” how would the City or the Attorney General
    be able to otherwise comply with their communication requirements under the statute?
    Further, it is also fundamentally necessary to establish the identity of the
    requestor, not only for communication purposes, but also because the statute authorizes
    only the requestor or the Attorney General to pursue the mandamus suit and then, only
    if an Attorney General opinion is not requested. 
    Id. § 552.321(a)
    (West 2004). So, as
    noted above, there is no way for the governmental body or the Attorney General to
    comply with the other duties of the Texas Public Information Act by communicating
    with anyone other than the requestor. And the provision that Bonner relies upon to
    bring the mandamus suit for the City’s alleged failure to provide access to the
    information authorizes the proceeding only “if the governmental body refuses to
    request an attorney general’s decision….” 
    Id. The fundamental
    problem that strict recognition of the standing requirement
    solves is, in fact, presented in this proceeding. Both the governmental body and the
    Attorney General complied with their Texas Public Information Act duties by
    communicating to the requestor as identified and made known to them, Texas Brat, not
    to Bonner. Thus, when attempting to bring this proceeding, Bonner, a mere interloper
    at that point, was unaware that the Attorney General opinion that had been requested
    Bonner v. City of Burleson                                                       Page 6
    had actually issued and that, therefore, the mandamus proceeding was not authorized
    by the statute.1
    Thus, based on the forgoing, because the May 5, 2008 request was made by Texas
    Brat, Texas Brat is the requestor and is the only person, other than the Attorney General,
    that could have standing to bring the mandamus. Further, even as to Texas Brat, the
    trial court does not have jurisdiction of the suit because the mandamus proceeding is
    only authorized if the governmental entity does not request an Attorney General
    opinion. In the facts as alleged by Bonner, he recognizes that a request for an Attorney
    General opinion was made. Therefore, he affirmatively pled facts which conclusively
    negate jurisdiction.
    Texas Brat – Bonner’s Agent
    We next must take up the issue that Bonner asserts he has standing as the
    requestor because, based upon his allegations which we must take as true in an appeal
    from a plea to the jurisdiction, Texas Brat is his agent (although not his attorney). Based
    on this allegation, as the principal, Bonner is bound by the actions of the City of
    Burleson in response to Texas Brat’s request. As noted above, the City requested an
    Attorney General opinion in response to the request of Texas Brat/Bonner. The City
    having requested an Attorney General opinion, the requestor, Texas Brat/Bonner, has
    1
    The Attorney General opinion determined the Burleson Police Department report sought by Bonner is
    protected by TEX. GOV’T CODE ANN. § 552.101 (West 2004) under TEX. FAM. CODE ANN. § 261.201(a) (West
    Supp. 2010). The protection of the document under that statue has been determined to be constitutional.
    See Doe v. Tarrant County Dist. Attorney's Office, 
    269 S.W.3d 147
    (Tex. App.—Fort Worth 2008, no pet.).
    Bonner is not deprived of the document due to his status as an inmate. Even before the City and the
    Attorney General knew Texas Brat may have been an agent for an inmate, they determined the document
    sought was exempt from disclosure.
    Bonner v. City of Burleson                                                                      Page 7
    no authority under section 552.321 to bring a suit for writ of mandamus. Thus, the trial
    court did not err in dismissing the suit for writ of mandamus brought by Texas
    Brat/Bonner.
    Estrada Distinguished
    The Court and Texas Brat/Bonner rely on Estrada for the proposition that a plea
    to the jurisdiction is not the proper procedural vehicle to challenge standing as a
    requestor. City of Houston v. Estrada, No. 14-08-00900-CV, 2009 Tex. App. LEXIS 1970
    (Tex. App.—Houston [14th Dist.] March 26, 2009, no pet.) (mem. op.). I respectfully
    disagree. In Estrada there was the allegation that the individuals signing the request
    were employees of the law firm identified in the mandamus proceeding. But all the
    requests at issue in the Estrada appeal were submitted on the law firm’s letterhead. The
    petitioner asserted that the signatories on the letterhead were agents for the law firm,
    and thus, the law firm was the requestor. To the extent of the agency allegations on
    appeal and whether that makes the law firm the requestor, the reader must remember
    that the requests were made on the law firm letter head; and thus, the City of Houston
    was not faced with the same issue that the City of Burleson faces in this proceeding.
    The agency relationship was clearly implied in or by the form of the request. In this
    proceeding, however, the City of Burleson had no way of knowing the agency
    relationship between Texas Brat and Bonner. Additionally, and much more important
    for the distinction from Estrada, Burleson requested an Attorney General opinion
    defeating the ability of Texas Brat or its principal, Bonner, to use the procedural vehicle
    of a suit for a writ of mandamus. Further, to the extent that Estrada discusses the
    Bonner v. City of Burleson                                                           Page 8
    “status” as a requestor, it appears to be more of a question of capacity than standing
    which is a rather common area of confusion. See Austin Nursing Ctr., Inc. v. Lovato, 
    171 S.W.3d 845
    , 848-849 (Tex. 2005) (discussing the difference between standing and
    capacity and discussing the confusion between the two concepts).
    Inmate Request for Public Information – Three Requests
    I now turn my attention to whether a suit for writ of mandamus is available to an
    inmate. I believe that any fair reading of the statute would be that it is not.
    Bonner’s petition identifies three other requests for information he submitted at
    various times to various persons within the City. In each of these, on the face of the
    request, he identified himself as being incarcerated. And it is undisputed that, at all
    times relevant to the requests for information and during the course of this proceeding,
    Bonner has been, is, and will remain for some time in the future, incarcerated. See
    Bonner v. State, No. 10-09-00120-CR, 2010 Tex. App. LEXIS 7440 (Tex. App.—Waco Sept.
    8, 2010, pet. ref’d) (mem. op.). Because Bonner is an inmate in a correctional facility,
    governmental bodies, including the City of Burleson, need not accept or comply with a
    request for information from Bonner or an agent of Bonner other than his attorney. TEX.
    GOV’T CODE ANN. § 552.028(a) and (c) (West 2004). The issue thus presented in the
    Court’s expanded construction of this proceeding is whether a trial court has
    jurisdiction of a suit for writ of mandamus under section 553.321 brought by an
    incarcerated person.
    This requires us to look to the statutory scheme as a whole and determine if the
    waiver of sovereign immunity provided for by section 552.321 is limited by another
    Bonner v. City of Burleson                                                         Page 9
    provision of the same Act. It must be remembered that we are construing a waiver of
    sovereign immunity and such waiver must be clear and unambiguous. See Wichita Falls
    State Hosp. v. Taylor, 
    106 S.W.3d 692
    , 696 (Tex. 2003). A mandamus proceeding, even in
    this context, is to compel the governmental body to comply with a ministerial act, the
    disclosure of public information. But not every request must be acted upon by the
    governmental body.           Specifically, as noted above, the governmental body is not
    required to accept or comply with a request for information from an incarcerated
    person. To allow an incarcerated person to present a request for information and then
    to bring a suit for a writ of mandamus against the governmental body when the
    governmental body has no duty or obligation to accept or comply with the request in
    the first instance would be an absurd result.2 I believe that the proper construction of
    the Act as a whole is that section 552.028 is a limitation on the waiver of sovereign
    immunity otherwise provided by section 552.321. If it is construed otherwise, it would
    require the governmental body to respond to a suit for failing to respond to a request
    that it had a statutory right to ignore.
    CONCLUSION
    Jurisdiction is never presumed. See Texas Ass'n of Business v. Texas Air Control
    Bd., 
    852 S.W.2d 440
    , 443-444 (Tex. 1993). We are to affirm a trial court’s judgment if it is
    correct on any theory of law supported by the case. See In re W.E.R., 
    669 S.W.2d 716
    , 717
    2
    At the very least, it would mean there is no realistic chance of success in such a proceeding and it should
    be dismissed as frivolous. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2) (West 2002); Hickman v. Moya,
    
    976 S.W.2d 360
    (Tex. App.—Waco 1998, pet. denied). This particular proceeding could also have been
    dismissed because Bonner failed to file the affidavit relating to previous filings. TEX. CIV. PRAC. & REM.
    CODE ANN. §14.004 (West 2002).
    Bonner v. City of Burleson                                                                          Page 10
    (Tex. 1984). Because Bonner only asserts that the trial court erred in granting the City’s
    summary judgment, when the trial court did not grant the City’s summary judgment, I
    would overrule his sole issue and affirm the trial court. If I were to proceed to the
    issues as framed and addressed by the Court regarding the propriety of the trial court’s
    dismissal for lack of jurisdiction, I would also affirm the trial court’s judgment.
    Accordingly, I respectfully dissent to the reversal of the trial court’s judgment and the
    remand of this proceeding.
    TOM GRAY
    Chief Justice
    Dissenting Opinion issued and filed August 31, 2011
    Bonner v. City of Burleson                                                         Page 11