City of Georgetown v. Putnam

• Decision Date: 25 March 2022
• Docket Number: 08-20-00171-CV
• Citation: 646 S.W.3d 61
• Parties: CITY OF GEORGETOWN, Texas, Dale Ross, Mayor of the City of Georgetown; and Davis Morgan, City Manager of the City of Georgetown, Appellants, v. Terrill W. PUTNAM, Appellee.
• Court: Texas Court of Appeals

646 S.W.3d 61

CITY OF GEORGETOWN, Texas, Dale Ross, Mayor of the City of Georgetown; and Davis Morgan, City Manager of the City of Georgetown, Appellants,

v.Terrill W. PUTNAM, Appellee.

No. 08-20-00171-CV

Court of Appeals of Texas, El Paso.

March 25, 2022

Michael Eugene Lovins, Dallas, Munera Al-Fuhaid, Robert Henneke, Kerrville, Joseph Barnes Sr., for Appellee.

William A. Faulk, Brownsville, Lambeth Townsend, Jose E. De La Fuente, Austin, for Appellants.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

JEFF ALLEY, Justice

Appellee Terrell Putnam filed a lawsuit against the City of Georgetown, its mayor, and city manager (collectively, the City), to compel the City to provide a specific document to him pursuant to the Texas Public Information Act (PIA).¹ The City had declined to provide the document after receiving an opinion letter from the Texas Attorney General that it was confidential and exempted under the PIA. During the litigation, however, the City voluntarily released the document to Putnam. The City thereafter filed a plea to the jurisdiction, arguing that the trial court lacked subject matter jurisdiction to hear any of Putnam's claims because the release of the document rendered Putnam's lawsuit moot, and because Putnam never had a valid claim for relief against the City that waived its immunity. Putnam opposed the City's plea to the jurisdiction, arguing that he still had "live" claims for relief, as well as a "live" claim for an award of attorney's fees and costs. The trial court agreed with Putnam. We, however, do not, and for the reasons set forth below, we reverse the order of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Public Information Request

Putnam resides in the City of Georgetown and has concerns about the investments the City has been making in renewable energy resources over the past few years. On November 16, 2016, he made a request to the City under the PIA to release a "payback analysis" relevant to a project in which the City had installed solar panels on a public building. Among other things, the payback analysis listed the rates at which the City could purchase electric power from several solar power providers, and the amount of energy each provider could generate at that rate.

The City responded to the request, asserting that the payback analysis was excepted from disclosure under section 552.133(b) of the PIA, which exempts from disclosure a public power utility's information that is "reasonably related to a competitive matter" (hereinafter the competitive-matters-exception). See TEX.GOV'T CODE ANN. § 552.133(b).² The City timely sought a decision from the Open Records Division of the Office of the Texas Attorney General (OAG) regarding whether the payback analysis came within that exception. In response, the OAG on December 15, 2016, issued "Open Records Decision OR2016-27724" in which it determined that the payback analysis fell within the exception such that the City "must withhold the submitted information."

B. Putnam's Lawsuit

On August 14, 2018, (some twenty months following the OAG opinion) Putnam filed a lawsuit naming the City of Georgetown, its mayor, and city manager, which sought a declaration pursuant to both the PIA and the Texas Uniform Declaratory Judgment Act (UDJA) that the payback analysis was public information that was not excepted from disclosure under the PIA. He sought an injunction compelling the City to release the document to him and requested an award of attorney's fees under both the PIA and the UDJA.

1. The City's voluntary release of the document

After filing a response to the lawsuit in September of 2018 the City apparently discovered that the payback analysis had previously been placed on its public website, and it therefore voluntarily released the payback analysis to Putnam on October 2, 2018. In its cover letter releasing the document, the City stated that although it was releasing the document, it was not changing its legal position that the payback analysis was not subject to disclosure. After receiving the document, Putnam amended his petition to eliminate his request for injunctive relief seeking release of the document, but he continued to pursue a claim for declaratory relief under both the PIA and the UDJA, which sought a declaration that the payback analysis was public information not excepted from disclosure. He also re-asserted his claim for attorney's fees.

2. The City's pleas to the jurisdiction and Putnam's motion for summary judgment

After releasing the requested document, the City filed a plea to the jurisdiction, seeking dismissal of Putnam's claims. The City argued that Putnam did not have a valid claim for relief that waived the City's governmental immunity under either the PIA or the UDJA, and that even if he did, all the claims, including his claim for an award of attorney's fees and costs, were rendered moot by the release of the document. Putnam opposed the plea and also filed his own motion for summary judgment, arguing that he was entitled to a judgment as a matter of law on his claims for declaratory relief under both the PIA and UDJA, as well as an award of attorney's fees and costs. Putnam argued that the case presented a "live controversy" because the City was still maintaining its legal position that the payback analysis was excepted from disclosure under the PIA. He further argued that his claims came within the capable-of-repetition-but-evading-review and public-interest exceptions to the mootness doctrine because he planned to make similar PIA requests in the future regarding the City's public utilities investments. And when he did so, he feared that the City would once again invoke the competitive-matters-exception to the PIA.

C. The Trial Court's Ruling

The trial court denied the City's plea to the jurisdiction and granted Putnam's motion for summary judgment. In its order, the trial court declared that the payback analysis was not excepted from disclosure under the competitive-matters-exception to the PIA and that it was therefore public and must be disclosed. In addition, the trial court determined that an award of reasonable and necessary attorney fees and costs was equitable and just and ordered Putnam to submit a motion detailing his reasonable and necessary fees and costs in the matter. In response, Putnam submitted a request, together with his attorneys’ billing records, seeking an award of $46,985 in attorney's fees and costs of $318.19. But before the trial court ruled on that request, the City filed this interlocutory appeal from the denial of its plea to the jurisdiction. See TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(a)(8) (permitting interlocutory appeal).³

D. Issues on Appeal

The City contends that the trial court erred by denying its plea to the jurisdiction, raising the following issues: (1) whether Putnam's claims were rendered moot by the City's voluntary release of the payback analysis; (2) whether Putnam had a valid claim for declaratory relief under the PIA that waived the City's immunity; (3) whether Putnam had a valid claim for declaratory relief under the UDJA that waived the City's immunity; and (4) whether Putnam was entitled to an award of attorney's fees under either the PIA or the UDJA.

E. Framework for Review

The City raised each of these arguments below through a plea to the jurisdiction, which challenges a trial court's authority to decide a case. See Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225-26 (Tex. 2004). In a plea to the jurisdiction, a defendant may challenge either the plaintiff's pleadings or the existence of jurisdictional facts on the ground that they do not support subject-matter jurisdiction. Id.

At the pleading stage, a plaintiff carries the burden of alleging sufficient facts to "demonstrate that the trial court has subject-matter jurisdiction over its claims." See City of El Paso v. Viel , 523 S.W.3d 876, 883 (Tex.App.--El Paso 2017, no pet.) ; see also Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). The question of whether a plaintiff has alleged sufficient facts to meet this burden is a question of law that we review de novo. Miranda , 133 S.W.3d at 226. If the pleadings do not allege facts sufficient to affirmatively demonstrate jurisdiction, but the pleading defects are curable by amendment, the issue is one of pleading sufficiency, and the plaintiff should be afforded an opportunity to amend. Texas A & M Univ. Sys. v. Koseoglu , 233 S.W.3d 835, 839-40 (Tex. 2007). However, if the pleadings affirmatively negate the existence of the trial court's jurisdiction by revealing an incurable defect, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at 840 ; Tabrizi v. City of Austin , 551 S.W.3d 290, 303 (Tex.App.--El Paso 2018, no pet.).

Moreover, when, as here, the plea to the jurisdiction challenges the existence of jurisdictional facts, we consider evidence that the parties submit when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000) ; City of El Paso v. Abbott , 444 S.W.3d 315, 320 (Tex.App.--Austin 2014, pet. denied). Our review of the trial court's decision mirrors that of our review of summary judgments, which we review de novo, accepting as true all evidence favorable to the non-movant, and indulging every reasonable inference and resolving any doubts in the non-movant's favor. City of El Paso v. Heinrich , 284 S.W.3d 366, 378 (Tex. 2009) ; Miranda , 133 S.W.3d at 228 ; State Dep't of Highways and Public Transp. v. Gonzalez , 82 S.W.3d 322, 327 (Tex. 2002).

II. OVERVIEW OF THE PIA

Using the Federal Freedom of Information Act (FOIA) as a model, the Texas Legislature passed the Texas Public Information Act, or PIA. See City of Garland v. Dallas Morning News , 22 S.W.3d 351, 355 (Tex. 2000). The PIA's purpose is to provide public access "at all times to complete information...