Patrick Walsh v. Texas Department of State Health Services ( 2021 )

Affirmed and Majority and Concurring Opinions filed October 12, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00111-CV
PATRICK WALSH, Appellant
V.
TEXAS DEPARTMENT OF STATE HEALTH SERVICES, Appellee
On Appeal from the 261st District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-18-000603
CONCURRING OPINION
I both concur in the court’s judgment and join in the opinion. I write
separately to comment that this case appears to be the first time the Texas appellate
courts have engaged in a substantive discussion of the attorney general’s formal
open-records decision concerning the two instances in which a previous
determination under Government Code section 552.301(a) exists, Open Records
Decision number 673. Tex. Att’y Gen. ORD 673 (2002); see Tex. Gov’t Code
Ann. § 552.301(a).1
The legislature has given the attorney general the duty to render decisions
under Government Code chapter 552, subchapter G. Tex. Gov’t Code Ann.
§§ 552.301–.309. This is separate from the role of attorney-general opinions,
which is authorized in the state constitution and by statute. Tex. Const. art. III,
§ 22; Tex. Gov’t Code Ann. §§ 402.041–.045.2 While the appellate courts cannot
give advisory opinions, we can discuss the attorney general’s stated methodology
as applied in a specific case on appeal. Presumably, a disproportionate number of
disputes over the disclosure of public information under chapter 552 are resolved
at the subchapter G level with an attorney-general open-records decision, with
substantially fewer disputes going further into civil enforcement in the judiciary
under subchapter H. Tex. Gov’t Code Ann. §§ 552.321–.327 (subchapter H).
1
The Public Information Act Handbook (2020) published by the Office of the Attorney
General of Texas describes two types of attorney-general decisions that comply with the
requirements of Government Code section 552.306: (1) formal open-records decisions (ORDs)
and (2) informal open-records letter rulings (ORLs). See Tex. Gov’t Code Ann. § 552.306
(rendition of attorney-general decision; issuance of written opinion).
2
As a contributor to Texas Law Review’s eighth edition of Texas Rules of Form (1992),
it is interesting that the current fourteenth edition of Texas Rules of Form: The Greenbook (2018)
has a citation form for informal ORLs, but does not have a citation form for formal ORDs. But
see Texas Tech Law Review, Texas Legislative History & Administrative Agency Citation Guide
32 (1986) (ORD citation form). While I think that says more about how often the appellate
judiciary analyzes the methodology of attorney-general decisions than a possible oversight by
Texas Law Review in compiling The Greenbook, I nonetheless encourage the addition of a
citation form for formal ORDs in a future edition to make it easier to search for those ORDs.
2
Because I believe the courts should engage with the attorney general’s ORD
673 analysis, I am glad we do so here, establishing judicial precedent that can be
applied beyond this appeal to disputes that are resolved at the administrative level
under subchapter G.3 I both concur in the court’s judgment and join in its opinion.
/s/ Charles A. Spain
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain (Zimmerer, J., majority).
3
Giving such guidance to the attorney general’s open-records division furthers the 1973
policy adopted by the legislature in the aftermath of the Sharpstown scandal:
Pursuant to the fundamental philosophy of the American constitutional form of
representative government which holds to the principle that government is the
servant of the people, and not the master of them, it is hereby declared to be the
public policy of the State of Texas that all persons are, unless otherwise expressly
provided by law, at all times entitled to full and complete information regarding
the affairs of government and the official acts of those who represent them as
public officials and employees. The people, in delegating authority, do not give
their public servants the right to decide what is good for the people to know and
what is not good for them to know. The people insist on remaining informed so
that they may retain control over the instruments they have created. To that end,
the provisions of this Act shall be liberally construed with the view of carrying
out the above declaration of public policy.
Act of May 19, 1973, 63d Leg., R.S., § 1, 1973 Tex. Gen. Laws 1112, 1112 (currently Tex.
Gov’t Code Ann. § 552.001(a)).
3