Empower Texans, Inc. v. Dall. Cnty., 05-20-00546-CV

CourtCourt of Appeals of Texas
Writing for the CourtOpinion by Justice Osborne
Citation648 S.W.3d 664
Parties EMPOWER TEXANS, INC., Appellant v. DALLAS COUNTY, Texas, Appellee
Docket Number05-20-00546-CV
Decision Date15 July 2022

648 S.W.3d 664

EMPOWER TEXANS, INC., Appellant
v.
DALLAS COUNTY, Texas, Appellee

No. 05-20-00546-CV

Court of Appeals of Texas, Dallas.

Opinion Filed July 15, 2022


William Garrett McMillan III, Tony K. McDonald, The Law Offices of Tony McDonald, Leander, for Appellant.

Clara Saafir, Barbara S. Nicholas, Assistant District Attorneys, Dallas, for Appellee.

Before Chief Justice Burns, III, and Justices Schenck and Osborne

OPINION

Opinion by Justice Osborne

Empower Texans, Inc. (Empower) appeals the trial court's order granting the plea to the jurisdiction filed by Dallas County, Texas, and dismissing with prejudice Empower's petition for a writ of mandamus relating to its Texas Public Information

648 S.W.3d 667

Act (TPIA) request.1 Empower raises five issues arguing: (1)–(3) the trial court erred when it granted the County's plea to the jurisdiction, concluding it lacked subject-matter jurisdiction, because Empower brought a claim for which governmental immunity was waived; and, in the alternative, (4)–(5) the trial court erred when it overruled by operation of law Empower's motion to modify the judgment because (a) Empower's claims were not rendered moot by the County's waiver of the disputed fees, so Empower has standing to assert its claims, and (b) even if the case is moot, the trial court should have dismissed the case without prejudice. In this case of first impression, we conclude the trial court did not err and affirm the trial court's order.

I. FACTUAL AND PROCEDURAL BACKGROUND

The factual background in this opinion is a recitation of the allegations contained in and the exhibits attached to the parties’ pleadings and motions.2

Empower is a non-profit media organization that reports on matters regarding state and local government. On April 5, 2019, Empower sent an email to the County attaching its open records request seeking production of specified public information.3 From April 5 to June 17, 2019, the County and Empower exchanged emails and letters in which: (1) Empower clarified its request and the County confirmed its understanding of the clarified request; (2) Empower corrected the time frame for the requested information and specified it wanted the information in digital format, i.e., email or thumb drive; (3) the County attached a written itemization of the estimated charges in the total amount of $207 for copies of the information requested; (4) Empower accepted the estimated costs, requested instructions for payment by credit card, and indicated a preference to retrieve the CD in person; and (5) the County provided instructions on how to pay by credit card.

On July 10, 2019, Empower modified its request to seek inspection of the information and sought a formal estimate of costs for the preparation of redactions. The County responded that the request was for electronic information that required programming and manipulation and provided a revised cost estimate of $198. Empower replied that it believed the charges for inspection were illegal, it intended to file a complaint with the Office of the Texas Attorney General (OAG), and it was considering whether to file a petition for a writ of mandamus.

On July 19, 2019, Empower filed both a complaint with the OAG and its petition for writ of mandamus and declaratory-judgment action in the trial court. In its first amended petition, Empower sought: (1) a writ of mandamus compelling the County to make the requested information available for inspection at a cost no higher than that authorized by law because the County was demanding the payment of

648 S.W.3d 668

unlawful charges prior to inspection; and (2) a declaratory judgment that the County is not entitled to require Empower to pay for the costs related to searching for and assembling records responsive to Empower's request. Empower asserted the trial court had subject-matter jurisdiction over its mandamus proceeding under § 552.321(a) of the Texas Government Code because the County's actions amounted to a refusal to make public information available for inspection, which satisfied the statutory prerequisite to the waiver of governmental immunity. See TEX. GOV'T CODE ANN. § 552.321(a).4 The County responded by filing a plea to the jurisdiction, an alternative motion to dismiss pursuant to Texas Rule of Civil Procedure 91a, and its original answer generally denying the claims and asserting several affirmative defenses. Also, on the same day it filed its plea to the jurisdiction, the County sent another revised cost estimate reducing the estimated total to $90, consisting of $60 for the conversion of the electronic documents to a publicly accessible format and $30 for the redaction of confidential or protected information.

Meanwhile, on November 21, 2019, the OAG issued an opinion that concluded, among other things: (1) the task of redacting confidential information from information that exists in electronic form meets the definition of "manipulation of data" and, as a result, (a) the County may charge for the time spent redacting confidential information after receiving a ruling from the OAG that the information is confidential, and (b) the County may not charge for the time required to redact information subject to only discretionary exceptions found under the TPIA; (2) the task of converting electronic file formats meets the definition of manipulation of data such that the County may generally charge for the time necessary to convert the email communications to a .pst file and, although the County has not explained why it must convert the .pst files to a PDF, if it determines it must do so in order to redact confidential information, it may charge for that time; and (3) the County must conduct a sample test to determine the time necessary to convert the emails to a secondary .pst file and redact confidential information, which should be used to estimate the cost to respond. On December 4, 2019, after the OAG opinion issued, the County sent Empower another revised cost estimate for a total of $75, the cost of manipulation of the data: (1) to convert the email communications to .pst files; (2) to convert the .pst files containing confidential information into a secondary PDF file; and (3) to make required redactions.

On February 6, 2020, the County sent Empower a revised cost estimate waiving all charges and filed its first amended plea to the jurisdiction, arguing with respect to Empower's petition for mandamus that: (1) Empower had not brought a claim for which governmental immunity was waived because a dispute over the cost of making the information available cannot be converted into a refusal to make it available; and (2) Empower had no standing because its claims had been rendered moot by the County's waiver of the disputed fees. Empower responded to the plea to the jurisdiction arguing, among other things, that as a matter of law: (1) Empower has rejected the estimated charges for programming and manipulation so, under § 552.231(d)(2) of the TPIA, the County is required to make the public information

648 S.W.3d 669

available in some form that does not require programming or manipulation of the data; (2) saving .pst files to a secondary location and converting them to PDFs does not qualify as programming or manipulation of data; (3) the TPIA does not distinguish "between a refusal to provide public information and a dispute over the cost of accessing that public information," and a local government's demand for unauthorized charges constitutes a refusal to provide the information for purposes of waiving governmental immunity; and (4) the existence of a cost dispute does not preclude Empower from filing its mandamus petition.

On February 26, 2020, after a hearing, the trial judge signed an order expressly granting the County's plea to the jurisdiction.5 The parties did not request and the trial judge did not sign any written findings of fact and conclusions of law. After the trial judge signed the written order, Empower filed a motion to modify the judgment arguing new developments had occurred that demonstrated a dispute remained between the parties and judicial relief remained necessary. The County filed a response, and Empower's motion to modify the judgment was overruled by operation of law.6

II. PLEA TO THE JURISDICTION

In issues one through three, Empower argues the trial court erred when it concluded it did not have subject-matter jurisdiction and granted the County's plea to the jurisdiction because Empower brought a claim for which governmental immunity was waived. It argues that citizens have the right to inspect public information for free when they do not request to inspect it in a particular form and the County's attempt to charge fees to inspect that public information constituted a refusal to supply the requested information. The County responds that its actions did not constitute a refusal to provide the documents as a matter of law because Empower requested to inspect records that existed in an electronic medium and § 552.272 allows it to charge for programming and manipulation.

A. Standard of Review

Whether a court has subject-matter...

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  • Empower Texans, Inc. v. Dall. Cnty., 22-0734
    • United States
    • Supreme Court of Texas
    • 16 décembre 2022
    ...COUNTY, TEXAS; No. 22-0734Supreme Court of TexasDecember 16, 2022 From Dallas County; 5th Court of Appeals District (05-20-00546-CV, 648 S.W.3d 664, 07-15-22) ORDER PETITION FOR REVIEW IS DENIED ...
1 cases
  • Empower Texans, Inc. v. Dall. Cnty., 22-0734
    • United States
    • Supreme Court of Texas
    • 16 décembre 2022
    ...COUNTY, TEXAS; No. 22-0734Supreme Court of TexasDecember 16, 2022 From Dallas County; 5th Court of Appeals District (05-20-00546-CV, 648 S.W.3d 664, 07-15-22) ORDER PETITION FOR REVIEW IS DENIED ...

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