City of El Paso, Texas v. Greg Abbott, Attorney General of Texas and Stephanie Townsend Allala , 2014 Tex. App. LEXIS 9664 ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON REHEARING
NO. 03-13-00820-CV
City of El Paso, Texas, Appellant
v.
Greg Abbott, Attorney General of Texas and Stephanie Townsend Allala, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-GV-12-001731, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING
OPINION
We withdraw our opinion and judgment of August 1, 2014, and substitute the
following opinion and judgment in their place.
In this interlocutory appeal, appellant the City of El Paso challenges the
district court’s denial of the City’s plea to the jurisdiction in a case brought under the Texas Public
Information Act (PIA).1 The City filed the suit seeking declaratory relief from compliance with
an attorney general decision ordering the City to disclose certain information requested by
appellee Stephanie Townsend Allala. See Tex. Gov’t Code § 552.324 (authorizing suit against
attorney general by governmental body that seeks to withhold information ordered disclosed by
the attorney general pursuant to PIA). Allala intervened, seeking a writ of mandamus to compel
1
The PIA is codified in the Texas Government Code. See Tex. Gov’t Code § 552.001–.353.
the disclosure of the responsive documents. See id. § 552.321 (waiving sovereign immunity for
requestor seeking mandamus to compel disclosure). 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. It then filed a plea to the jurisdiction to dismiss Allala’s
claim, arguing that it had complied with Allala’s request in full. The Attorney General did not
oppose the City’s plea, but Allala did, and after two hearings on the issue, the district court denied
the City’s plea to the jurisdiction. For the reasons explained in detail below, we will reverse the
district court’s order denying the City’s plea, render judgment that the district court lacks
jurisdiction, and dismiss Allala’s claim for mandamus relief.
Background
In September and October 2012, Allala made two public-information requests to
the City of El Paso for various communications regarding public business of the City between the
mayor, council representatives, the city manager, or some combination thereof, including any public-
business communications that may have been conducted on the personal email accounts of these
individuals. The City, following the procedures set forth in the PIA, see id. §§ 552.301–.309, asked
the attorney general to issue advisory opinions regarding Allala’s request, including whether
the private emails responsive to Allala’s requests were public information and, if so, whether
those emails were excepted from disclosure under the PIA. The City argued in its requests that any
responsive emails held on individuals’ private email accounts cannot be considered “public
information” under the PIA’s then-current definition of that term because the emails were not in the
2
City’s possession and were inaccessible to the City.2 In one opinion addressing both requests, the
attorney general reasoned, in relevant part, that because the private emails requested by Allala
“relate[] to the official business of a governmental body and [are] maintained by a public official or
employee of the governmental body,” the emails are within the scope of the PIA. See Tex. Att’y
Gen. OR2012-19216. The location of public information, the attorney general explained, does
not affect its status as public information. See id. The attorney general determined further that the
requested emails were not subject to any exceptions to disclosure asserted by the City and,
accordingly, informed the City that it must release the withheld information. See id.
In response to the attorney general’s decision, the City filed suit in Travis County
seeking declarations that private emails are not “public information” under the PIA, private emails
are excepted from disclosure under the PIA, the City “has compelling reasons to keep the documents
at issue except[ed] from public disclosure,” and the City is not required to release private emails.
See Tex. Gov’t Code § 552.324 (authorizing declaratory-judgment action against attorney general
for relief from compliance with a decision ordering it to disclose certain information). Specifically,
the City argued that the personal papers, emails, and effects of local-government officials and
employees that are held independently from the governmental body are not subject to “open records
searches” and do not meet the statutory definition of public information, thus the information is
inaccessible to the City and not subject to the PIA. The attorney general filed an answer opposing
the City’s arguments, and Allala intervened in the case, seeking an order of mandamus against the
City to disclose all of the public information that she had requested. See id. 552.321 (authorizing
2
See Act of May 29, 1995, 74th Leg., R.S., ch. 1035, § 2, sec. 552.002, 1995 Tex. Gen.
Laws 5127, 5127–28 (amended 2013) (current version at Tex. Gov’t Code § 552.002) (definition
of “public information” in effect when Allala filed her requests for information.
3
mandamus action by requestor where the governmental body “refuses to supply public information
or information that the attorney general has determined is public information that is not excepted
from disclosure”).
During the pendency of the City’s declaratory-judgment action, the legislature
amended the PIA’s definition of “public information” to codify, the parties contend, the attorney
general’s long-held position that public information includes documents or other items created “by
an individual officer or employee of a governmental body in the officer’s or employee’s official
capacity and the information pertains to official business of the governmental body,” regardless
of where that information is located. See Act of May 24, 2013, 83d Leg., R.S., ch. 1204, § 1,
sec. 552.002, 2013 Tex. Gen. Laws 3011, 3011–12 (codified at Tex. Gov’t Code § 552.002).3
According to the City, certain other matters affecting the City’s efforts to withhold certain of the
requested information had ceased to exist during the pendency of its PIA suit. Accordingly, the City
decided to withdraw its challenge to the attorney general’s decision and, on September 16, 2013,
released to Allala all remaining responsive documents that were in its possession.
After releasing the documents, the City filed a plea to the jurisdiction, arguing that
its release of the requested documents in its possession had mooted all claims, thus depriving the
district court of jurisdiction, and that its case should be dismissed accordingly. In support of its
plea to the jurisdiction, the City attached the affidavit of its city manager, Joyce Wilson, who
testified that after conducting “a diligent search for information,” the City had gathered and turned
over “all [responsive] information accessible to the city or within the city’s control,” including
3
Because the issue is not before us here, we do not address the effect of the Legislature’s
2013 changes to the definition of “public information.”
4
information voluntarily disclosed by current and former city officials in response to Wilson’s request
for such information.
The attorney general did not oppose the City’s plea. Allala, however, filed a response
to the City’s plea objecting to Wilson’s affidavit and requesting a continuance to allow Allala to
conduct discovery related to both the City’s plea and to the merits of Allala’s mandamus request.
Specifically, Allala argued that before dismissing her petition as moot based solely on the City’s
assertion that it has provided all the information in its possession, she should be allowed to
depose certain of the individuals identified in her information request to determine whether those
named individuals have records responsive to her request—i.e., emails relating to public business
located on private email accounts—that were not provided to the City or disclosed pursuant to the
attorney general’s decision. Allala pointed out, supported by her own affidavit, that the City had
failed to produce certain attachments for the emails that it had produced and that, as shown by the
City’s responses to requests for admission, the City had redacted personal email addresses from
certain emails. Allala also attached an email, provided to Allala by the City, from city councilman
Steve Ortega to Wilson, in which Ortega stated that he would “not be turning over any of [his]
private emails.” Finally, Allala asserted that, regardless, the City’s evidence in support of its plea to
the jurisdiction was not sufficient to prove mootness as a matter of law.
At the first hearing on the City’s plea to the jurisdiction, the district court sustained
Allala’s objection to Wilson’s affidavit,4 but decided to postpone a decision on the City’s plea to
allow Allala time to conduct “limited discovery.” A few weeks later, the City filed a supplemental
4
The district court determined that the affidavit’s statement regarding its “diligent search
for information” was “conclusory.”
5
plea to the jurisdiction, which in addition to addressing Allala’s contentions regarding missing
attachments, included three affidavits detailing the City’s efforts in response to Allala’s request for
information and asserting that all responsive information possessed by or accessible to the
City had been produced to Allala. At the second hearing on the City’s plea, the parties resolved the
issue relating to the missing email attachments, but Allala maintained her position regarding the
redacted email addresses and the need for additional discovery to determine whether any responsive
information existed outside the physical possession of the City. Allala did not offer any additional
evidence to support her opposition to the City’s plea. Counsel for former city council member
Steve Ortega argued at the hearing that his client had since decided to produce responsive
information and purported to offer an affidavit attesting to that decision, but that affidavit does not
appear in the record before this Court. After taking the matter under advisement, the district court
denied the City’s plea to the jurisdiction, allowing Allala’s claim for relief to proceed. It is from this
interlocutory order that the City now appeals.
Standard of review
A plea to the jurisdiction challenges a trial court’s authority to decide the subject
matter of a specific cause of action. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 225–26 (Tex. 2004). Where, as here, the plea to the jurisdiction challenges the existence of
jurisdictional facts—i.e., whether the City “refuses to supply public information or information
that the attorney general has determined is public information,” Tex. Gov’t Code § 552.321—we
consider evidence that the parties have submitted when necessary to resolve the jurisdictional issues
raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). In fact, in a plea to the
jurisdiction, a party may present evidence to negate the existence of a jurisdictional fact alleged in
6
the pleadings, which we would otherwise presume to be true. See Miranda, 133 S.W.3d at 227.
How we review a trial court’s explicit or implicit determination of such a challenge depends on
whether the jurisdictional fact being challenged overlaps with the merits of the complainant’s claims.
See University of Tex. v. Poindexter, 306 S.W.3d 798, 806 (Tex. App.—Austin 2009, no pet.).
When, as here, the jurisdictional facts do implicate the merits, and the plea to the jurisdiction
includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists.
See Miranda, 133 S.W.3d at 228.5 If the evidence creates a fact question regarding the jurisdictional
issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue is resolved by
the fact finder at trial. Id. at 227–28. If the relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of
law. Id. The trial court’s determination in such a case is a purely legal one that we review de novo,
indulging every reasonable inference and resolving any doubts in the plaintiff’s favor. Id. at 228;
Poindexter, 306 S.W.3d at 807.
Resolution of jurisdictional questions frequently entails, as it does here, construction
of statutes, which itself presents a question of law. See Texas W. Oaks Hosp., LP v. Williams,
371 S.W.3d 171, 177 (Tex. 2012). When construing a statute, our primary objective is to ascertain
and give effect to the legislature’s intent. TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d
432, 439 (Tex. 2011). To discern that intent, we begin with the statute’s words. Id. “Where text
is clear, text is determinative of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433,
5
If the challenged jurisdictional fact does not overlap the merits, the fact issue may be
resolved by the trial court when resolving the jurisdictional issue, and its explicit or implicit fact-
finding (or failure-to-find) may be challenged in the same manner as fact findings generally. See
Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712, 719 (Tex. App.—Austin 2009, no pet.).
7
437 (Tex. 2009). The words cannot be examined in isolation, but must be informed by the context
in which they are used. TGS–NOPEC, 340 S.W.3d at 441. We rely on the plain meaning of the
words, unless a different meaning is supplied by legislative definition or is apparent from context,
or unless such a construction leads to “absurd results.” See City of Rockwall v. Hughes, 246 S.W.3d
621, 625–26 (Tex. 2008); see also Tex. Gov’t Code § 311.011 (“Words and phrases shall be read
in context and construed according to the rules of grammar and common usage,” but “[w]ords and
phrases that have acquired a technical or particular meaning, whether by legislative definition or
otherwise, shall be construed accordingly.”).
Discussion
The City challenges the district court’s denial of its plea to the jurisdiction in
three issues: (1) whether the City’s voluntary production of all responsive information that it had
access to when Allala’s request was made, including private emails voluntarily turned over to the
City in response to official requests for such documents from relevant individuals, mooted all claims
related to the underlying PIA action; (2) whether the doctrine of sovereign immunity deprived the
trial court of jurisdiction once the City “establishe[d] by jurisdictional evidence that [the City] ha[d]
complied, to the extent of its ability,” with the attorney general’s decision; and (3) whether a
requestor may continue to prosecute a mandamus action brought under the PIA when evidence
establishes that the circumstances listed in PIA sections 552.321 and 552.324 do not exist. Because
the City’s uncontroverted jurisdictional evidence conclusively negated that it was “refusing to supply
public information or information that the attorney general has determined is public information,”
see Tex. Gov’t Code § 552.321(a) (waiving sovereign immunity for certain mandamus actions),
8
which formed the basis of Allala’s request for mandamus relief, we will begin our analysis with the
City’s sovereign-immunity argument.6
Sovereign Immunity
The doctrine of sovereign immunity, which shields governmental entities’
“improvident acts” against the litigation and judicial remedies that would be available if the same
acts were committed by private persons, is well known and settled in Texas. See Tooke v. City of
Mexia, 197 S.W.3d 325, 331–32 (Tex. 2006). Sovereign immunity deprives a trial court of subject-
matter jurisdiction for lawsuits in which the state or certain governmental units have been
sued unless the state consents to suit. See Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 620–21
(Tex. 2011) (per curiam); Miranda, 133 S.W.3d at 224. Sovereign immunity compels Texas courts
to defer to the legislature as the gatekeeper controlling when and how citizens can sue their state
government or its officers for their official acts. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
692, 695 (Tex. 2003) (noting that “the Legislature is better suited to balance the conflicting
policy issues associated with waiving immunity”) (citing, among other cases, Texas Natural Res.
Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 854 (Tex. 2002)). The legislature may consent
to suits against the State by statute or resolution, but “legislative consent to sue the State must
be expressed in ‘clear and unambiguous language.’” IT–Davy, 74 S.W.3d at 853–54 (citing General
Servs. Comm’n v. Little–Tex. Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001) and (quoting
Tex. Gov’t Code § 311.034; University of Tex. Med. Branch v. York, 871 S.W.2d 175, 177
(Tex.1994))).
6
The Attorney General does not oppose the City’s appeal and, consequently, did not file an
appellate brief in response.
9
Allala’s intervention in the underlying suit asserted a claim under PIA
section 552.321, which waives sovereign immunity for requestors seeking a writ of mandamus to
compel a governmental body to make information available for public inspection under certain
circumstances:
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.
Tex. Gov’t Code § 552.321(a) (footnotes omitted). Allala asserted in her pleading that she was
entitled to mandamus relief under section 552.321 because “[t]he City of El Paso refused to disclose
public information that the attorney general has determined is public information that is not exempt
from disclosure.” In support of her claim, Allala alleged that she had requested certain documents
from the City, including private emails regarding official city business; the City withheld certain
documents responsive to that request and sought an opinion from the attorney general; the attorney
general issued a ruling determining that the information was public information subject to disclosure;
and that instead of complying with that decision and producing the public information, the City filed
a suit for judicial review of the attorney general’s opinion. As such, Allala’s pleading alleged facts
that affirmatively demonstrated the district court’s subject-matter jurisdiction over her claim. See
Miranda, 133 S.W.3d at 226.
The City, however, after deciding to disclose and then disclosing the responsive
information that it had been previously withholding, including various emails from private accounts
that it had received from private individuals, filed a plea to the jurisdiction and submitted evidence
10
to controvert the jurisdictional facts supporting Allala’s mandamus claim. See Miranda, 133 S.W.3d
at 227–28 (movant in plea to jurisdiction, like movant in summary judgment, must assert and
support with evidence that the trial court lacks subject-matter jurisdiction). The City argued that its
voluntary disclosure of all responsive public information in its possession deprived the district court
of jurisdiction over Allala’s section 552.321 mandamus action. In support of its argument, the City
attached the attorney general’s opinion and three affidavits showing how it had fully complied with
the PIA and the attorney general’s opinion by making available to Allala all of the public information
to which it had access.7
The City’s first affidavit in support of its plea to the jurisdiction was from El Paso
Assistant City Attorney Kristen Lynn Hamilton, who testified regarding the City’s efforts to comply
with Allala’s information request. Relevant here, Hamilton testified that:
• Between receipt of Allala’s request and September 17, 2012, the City searched for all
responsive documents that “were held on the City’s server” or that were “within the physical
control of city employees and officials,” including “all responsive documents that were held
on the City’s server . . . in the Microsoft Outlook file of each of the relevant persons from
whom the requestor was seeking emails;
• On September 11, 2012, Hamilton “instructed each of the persons named in the request to
gather all responsive documentation that was not held on the City’s server”;
• In response to the City’s request to turn over responsive documents, certain individuals
provided “e-mails that they retrieved voluntarily from their personal e-mail accounts,” and
those private emails “were included in the [City’s] request to the Attorney General”;
• After receiving Allala’s second request, the City gathered “all responsive documents,
including personal e-mails that were, at the time of the second request, in the possession of
the City”;
7
The City filed four affidavits, but, as mentioned above, the district court sustained Allala’s
objection to Wilson’s affidavit. Accordingly and because the City does not challenge this ruling on
appeal, we have considered only the three unchallenged affidavits in our resolution of this appeal.
11
• The City included in its request for an attorney general opinion the private emails it had
received from various individuals;
• During the pendency of the City’s suit against the attorney general, the City “passed a
resolution” requiring its officers, employees, and volunteers to use “City e-mail addresses
to conduct all City business and to forward “any correspondence regarding City business that
was stored on personal e-mail accounts” to the employees’ City email account;
• Also during the pendency of the City’s suit, the El Paso City Council “instructed that all
documentation previously withheld, and subject to the lawsuit, was to be released to the
public”;
• In response to that directive, the City released “every document, electronic or tangible, that
had been located in any City server[] or in the possession of any employee or official [that]
had previously been withheld contrary to the determination of the Attorney General”;
• On August 29, 2013, the El Paso City Manager sent a letter “requesting that each of the
relevant persons provide any additional [responsive] personal e-mails that had not previously
been turned over to the City”;
• On September 16, 2013, the City produced the documents it received in response to the
August 29 letter, including emails and statements from the targeted individuals that no
responsive personal emails existed; and
• By September 17, 2013, the City had released to Allala all the information that was in the
City’s “possession,” “custody or control,” or that it had received from the named individuals.
The second affidavit, from the City’s system administrator, described in detail the internal search
for documents on the City’s servers, including the Outlook mailboxes of the named individuals. The
City’s third affidavit in support of its plea to the jurisdiction was from its outside counsel
Erin Higginbotham, who testified that she assisted Hamilton with Allala’s request, including
the release of all responsive documents that the City had previously sought to withhold. She also
reiterated Hamilton’s assertions regarding the City’s requests to the named individuals to turn over
to the City any responsive documents that exist on those individuals’ private email accounts.
12
In sum, the City’s jurisdictional evidence established that the City searched
extensively for responsive documents, officially requested responsive documents from the
individuals named in the request, and then ultimately produced to Allala all the documents that it
had been able to locate and obtain. We conclude that this was sufficient to conclusively establish
that the City was not “refusing to supply public information that the attorney general has determined
is public information.” See Tex. Gov’t Code § 552.321(a). By its plain terms, the PIA’s waiver
of sovereign immunity for mandamus requires that the City be “refusing” to supply public
information—here, the private emails of others. “Refuse” in this context means to “show or express
a positive unwillingness to do or comply with.” Webster’s Third New Int’l Dictionary 1910 (2002)
(defining verb “refuse”); see The American Heritage Dictionary of the English Language 1478
(5th ed. 2011) (defining “refuse” as “to indicate unwillingness to do, accept, give, or allow,” and
explaining that it “implies determination”). By comparison, the transitive form of the verb “fail,”
which the legislature has used, in similar contexts, by itself, see, e.g., Tex. Occ. Code § 2051.457
(“fails to pay”), or in conjunction with “refuse,” see, e.g., Tex. Nat. Res. Code § 134.173 (“violates,
fails, or refuses to comply”), means “to omit to perform” or “to leave undone.” See American
Heritage Dictionary at 634. Thus, under the plain language of section 552.321’s waiver of sovereign
immunity, a requestor must show that the governmental body is “unwilling” to supply public
information. See Tex. Gov’t Code § 552.321; City of Rockwall, 246 S.W.3d at 625–26 (asserting
that courts should “rely on the plain meaning of the words, unless a different meaning is supplied
by legislative definition or is apparent from context, or unless such a construction leads to ‘absurd
results’” ); Tex. Gov’t Code § 311.011 (“Words and phrases shall be read in context and construed
according to the rules of grammar and common usage,” but “[w]ords and phrases that have acquired
13
a technical or particular meaning, whether by legislative definition or otherwise, shall be construed
accordingly.”); see also Associates Fin. Servs. of Am., Inc. v. North Carolina Farm Bureau Mut.
Ins. Co., 528 S.E.2d 621, 624 (N.C. Ct. App. 2000) (defining “refuse to renew” as “indicating an
unwillingness to renew”); but see Societe Internationale Pour Participations Industrielles
Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 207–08 (1958) (acknowledging definition of
“refuse,” but declining to apply where statute in question used the word in same sense as “fail”). The
City’s jurisdictional evidence conclusively shows that it searched extensively for the requested
information, officially requested responsive documents from the targeted and relevant individuals
on at least two occasions, and produced to Allala every responsive document that it found
or received.
Our review of the PIA reveals no methods by which the City could compel the
disclosure of public-information emails located on private email accounts, other than what the City
did here—i.e., request the documents from the targeted individuals and change the City’s policy
regarding public business on private emails. In fact, other than requiring that the governmental body
“promptly8 produce public information for inspection, duplication, or both,” Tex. Gov’t Code
§ 552.221(a), the PIA provides no guidance regarding the efforts a governmental body must take to
locate, secure, or make available the public information requested. Here, the City’s jurisdictional
evidence conclusively established that it was willing to supply the requested information and, to the
extent that it located it or received it from the individuals named in the request, it actually had done
8
Section 552.221 defines “promptly” as “as soon as possible under the circumstances,
that is, within a reasonable time, without delay.” See Tex. Gov’t Code § 552.221(a); see also id.
§§ 552.221(c) (requiring notification to requestor if information cannot be produced within ten days
of request), 552.301(b) (requiring governmental body that seeks to withhold information to request
attorney general decision within ten days of receipt of request for information).
14
so. Accordingly, the City asserted and supported with evidence that the trial court lacked subject-
matter jurisdiction. See Miranda, 133 S.W.3d at 228.
Once the City established that it was not “refusing to supply public information,” the
burden shifted to Allala “to show that there is a disputed material fact regarding the jurisdictional
issue.” See id. Allala, however, did not controvert or object to the City’s jurisdictional evidence
discussed above;9 instead she responded that her claim was that the City “did not disclose all of
the public information she requested as required” and, therefore, she should be allowed to take
“targeted” depositions to determine whether the individuals named in her request had turned over
responsive private emails to the City. She also emphasized that, under Local Government Code
sections 201.005 and 201.006, any documents responsive to her request are the property of the
City and must be turned over to the City. See Tex. Loc. Gov’t Code §§ 201.005–.006(a). In support
of this argument, Allala offered, among other items, an email from former council member
Steve Ortega stating that, in response to the City’s August 29 request for public information held on
private email accounts, he will not produce any of his private emails. Allala also attached a copy of
a newspaper article from the El Paso Times mentioning Ortega in connection with Allala’s request:
“I guess they can ask me for anything they want, but I’m not going to
turn over anything unless there is a valid court order,” Ortega said. “There is the
Fourth Amendment that protects my personal effects. Certain standards have to be
met in order for me to turn over my personal effects. When that standard is met I will
turn them over.”
9
Allala argued in her response and supported with an affidavit that certain attachments to
disclosed emails had not been produced, but the record indicates that the parties resolved this issue
and that the attachments in question were disclosed. Allala does not contend otherwise on appeal.
15
Finally, Allala attached copies of emails from individuals named in her request that, she contends,
show that those individuals had not turned over all responsive documents and, thus, the City’s
production of responsive documents was incomplete. In sum, Allala’s response established that
certain individuals may be in possession of emails that are responsive to her PIA request, that
those individuals may be unwilling to turn over those emails, and that the City has not made those
possibly-existing emails available to her. Therefore, Allala continued, she should be allowed to
conduct discovery on the issue before the City’s plea to the jurisdiction is granted.
Even assuming, as we must in this circumstance, see Miranda, 133 S.W.3d at 226
(requiring reviewing court to “indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor”), that the City has not disclosed all responsive documents that exist—i.e., that
private individuals continue to hold public information on their private email accounts—the bottom
line for purposes of our appellate review of the City’s plea to the jurisdiction is that Allala did not
offer any evidence, or even argument, to controvert or question the City’s conclusive evidence that
it searched extensively for the requested documents, including officially informing each of the
targeted individuals that they must turn over the requested information to the City, and turned over
all those documents to Allala. Stated another way, Allala did not raise a fact question on the issue
of whether the City was refusing or unwilling to supply the public information. The fact that a
former city councilman has public information on his private email account that he has not provided
to the City, despite multiple official requests by the City that he do so, does not reflect that the City
is unwilling to disclose that information as it is required to do so under the PIA. See, e.g., Thomas
v. Cornyn, 71 S.W.3d 473, 486 (Tex. App.—Austin 2002, no pet.) (citing A&T Consultants, Inc.
v. Sharp, 904 S.W.2d 668 (Tex. 1995) (holding that predecessor statute to PIA does not require
16
governmental body to prepare or assemble new information in response to a request)); Economic
Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266, 268 (Tex. Civ. App.—San Antonio 1978,
writ dism’d) (holding that a government agency could not be required to make copies of documents
no longer in its possession); see also Tex. Att’y Gen. ORD–555 (1990) (stating that only information
in existence is subject to disclosure).
Allala argues that section 202.005 of the Local Government Code gives the City a
judicial means to obtain or recover the private emails at issue here:
(a) The governing body may demand and receive from any person any local
government record in private possession created or received by the local government
the removal of which was not authorized by law.
(b) If the person in possession of a local government record refuses to deliver the
record on demand, the governing body may petition the district court of the county
in which the person resides for the return of the record. If the court finds that the
record is a local government record, the court shall order the return of the record.
Tex. Loc. Gov’t Code § 202.005(a)–(b). We disagree. First, even an unanswered petition to the
district court would not allow the agency to meet the short turnaround time demanded by the PIA.
See Tex. Gov’t Code § 552.301(b) (imposing ten-day limit on request for attorney general decision).
Second, under its plain language, section 202.005 applies only where the local-government record
at issue was removed without authorization. See id. § 202.005(a) (“the removal of which was not
authorized by law”). On the record before us, there is no suggestion that private emails responsive
to Allala’s request were removed without authorization. Finally, even assuming that section 202.005
provides the City a means to access the private emails at issue here and disregarding any privacy
issues that might arise, using it here as Allala suggests—i.e., either to compel the City to sue former
employees or councilmen or to show that the City is refusing to produce the emails—would result
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in the expansion of the PIA’s specific waiver of sovereign immunity by grafting a discretionary
Local Government Code provision that does not waive, or even concern, sovereign immunity. We
are not authorized or willing to do this. See Tex. Gov’t Code § 311.034 (“In order to preserve the
legislature’s interest in managing state fiscal matters through the appropriate process, a statute
shall not be construed as a waiver of sovereign immunity unless waiver is effected by clear and
unambiguous language.”); Taylor, 106 S.W.3d at 696 (noting as settled proposition that statutory
waiver of sovereign immunity must be by “clear and unambiguous expression of the Legislature’s
waiver of immunity”).
For the reasons explained, we conclude that the City established as a matter of law
that it was not refusing to supply public information and that Allala failed to raise a fact issue on
that point. Thus, the district court lacked subject-matter jurisdiction over Allala’s section 552.321
mandamus claim and should have granted the City’s plea. See Miranda, 133 S.W.3d at 234
(allowing dismissal on plea to the jurisdiction where the jurisdictional evidence is undisputed and
fails to raise fact issue). Accordingly, we sustain the City’s first issue on appeal.
Having determined that the district court lacked jurisdiction under principles of
sovereign immunity, we need not address the City’s remaining challenges to the district court’s
denial of its plea to the jurisdiction.
Allala’s cross-point
In a cross-point, Allala urges that the district court’s denial of the City’s plea to the
jurisdiction was proper because the City withheld and continues to withhold certain email addresses
from public disclosure. But, without addressing or expressing an opinion regarding whether the
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email addresses at issue here fall under the PIA, we note that the attorney general’s opinion directed
the City to withhold the email addresses:
Section 552.137 of the Government Code excepts from disclosure “an e-mail address
of a member of the public that is provided for the purpose of communicating
electronically with a governmental body,” unless the member of the public consents
to its release or the e-mail address is a type specifically excluded by subsection (c).
Gov’t Code § 552.137(a)–(c). The e-mail addresses you have marked, and the
additional e-mail addresses we have marked, are not a type specifically excluded by
section 552.137(c). Therefore, the city must withhold the marked e-mail addresses
under section 552.137, unless the owners affirmatively consent to their release.
(Emphasis added.) Given this directive, the City cannot be said to be “refusing to supply public
information that the attorney general has determined is public information.” Accordingly, we
overrule Allala’s cross-point.
Conclusion
Having determined that the trial court erred by denying the City’s plea to the
jurisdiction and having overruled Allala’s cross-point, we reverse the district court’s order
denying the City’s plea to the jurisdiction and render judgment granting the plea and dismissing
Allala’s claims.
__________________________________________
Jeff Rose, Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Reversed and Rendered on Rehearing
Filed: August 29, 2014
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