Tex. State Bd. of Veterinary Med. Examiners v. Giggleman

• Decision Date: 22 August 2013
• Docket Number: No. 03–12–00318–CV.,03–12–00318–CV.
• Citation: 408 S.W.3d 696
• Parties: TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS, Appellant v. Gene GIGGLEMAN, DVM, Appellee.
• Court: Texas Court of Appeals

408 S.W.3d 696

TEXAS STATE BOARD OF VETERINARY MEDICAL EXAMINERS, Appellant

v.Gene GIGGLEMAN, DVM, Appellee.

No. 03–12–00318–CV.

Court of Appeals of Texas, Austin.

Aug. 22, 2013.

Donald A. Ferrill, Misty M. Pratt, Brown, Pruitt, Peterson & Wambsganss, P.C., Fort Worth, TX, for Appellee.

Bill Davis, Assistant Solicitor General, Office of the Attorney General, Austin, TX, for Appellant.

Before Justices PURYEAR, PEMBERTON, and ROSE.

OPINION

BOB PEMBERTON, Justice.

The principal issue presented in this appeal, which arises from a mandamus suit brought by a requestor under the Texas Public Information Act (PIA),¹ is whether the requestor “substantially prevailed,” so as to qualify for an attorney's-fees award under the PIA,² where he obtained an interlocutory summary judgment on his mandamus claim but that claim was ultimately rendered moot prior to final judgment. Under the circumstances here, we conclude he did not. We likewise hold that the requestor could not use the Uniform Declaratory Judgments Act (UDJA) ³ as a vehicle for recovering the attorney's fees he sought.

BACKGROUND

As its name suggests, appellant Texas State Board of Veterinary Medical Examiners(Board) is the Texas state government agency that licenses and regulates veterinarians within this state.⁴ Appellee Gene Giggleman is a veterinarian who is licensed and regulated by the Board. In 2010, Dr. Giggleman was the target of a disciplinary complaint filed with the Board by PETA (People for the Ethical Treatment of Animals).⁵ The complaint alleged that Giggleman had committed various forms of professional misconduct as “attending veterinarian” for U.S. Global Exotics (USGE), a now-defunct Arlington business that had been engaged in the import and sale of exotic animals before being raided and shut down by federal and state authorities in 2009.⁶ PETA's complaint was in the form of a nine-page letter asserting numerous allegations against Giggleman and referring, as support, to several accompanying “exhibits” of evidence, including photographs and videotape, that had been surreptitiously gathered by an organization operative who had infiltrated USGE for several months before going to authorities.

Although the disciplinary complaint against Giggleman would ultimately culminate in an agreed formal reprimand and probated license suspension for “unprofessional/dishonorable conduct,” ⁷ the present appeal centers solely on whether Giggleman can recover attorney's fees he incurred during what was essentially a discovery dispute arising shortly after the complaint was filed. The filing of the complaint triggered Board rules that, at relevant times, required the agency to assign an investigator and send “a copy of the complaint ... to the licensee, along with a request that the licensee respond to the complaint in writing within 21 days of receipt of the request.” 22 Tex. Admin. Code § 575.28(6) (2010) (Texas Bd. of Veterinary Med. Exam'rs, Complaints—Investigations) amended by 36 Tex. Reg. 142 (2011) (effective Jan. 18, 2011) (hereinafter cited as “Former 22 Tex. Admin. Code § 575.28); ⁸see also Tex. Att'y Gen. OR2009–683, at 2 (observing that “the Board's rules have required the investigator to release the complaint to the licensee since 1994”). However, the Board's enabling statute provides that “a [n] investigation record of the board, including a record relating to a complaint that is found to be groundless, is confidential.” Tex. Occ.Code § 801.027(b). In response to requests from the Board, the Attorney General had construed the “investigation records” made “confidential” by section 801.027(b) to include the “complaint” that triggers the investigation, seeTex. Att'y Gen. OR2006–10465, at 1–2, but also determined that this statute, read in context with other statutory provisions prescribing procedures for investigating complaints, left the Board room to make limited disclosureof the “complaint” to the licensee as part of its investigative process, as its rules required. See Tex. Att'y Gen. OR2009–683, at 2–5. The dispute that arose between Giggleman and the Board presented what was apparently a new wrinkle regarding the relationship between section 801.027(b)'s confidentiality protection and the Board's rules requiring disclosure of “complaints”—whether the “complaint” the Board could or must disclose to Giggleman included not only PETA's allegations, but also the accompanying exhibits.

The dispute arose after the Board, in purported compliance with its rules, wrote Giggleman and gave notice that it had received a “complaint” pertaining to his practice of veterinary medicine, attached a copy of PETA's letter—without the accompanying exhibits—and gave Giggleman 21 days to furnish a narrative response to “the facts and circumstances surrounding the allegations contained in this complaint.” See Former 22 Tex. Admin. Code § 575.28(6). Giggleman, through counsel, wrote back asserting that “documents that were a part of the Complaint were not provided” to him, and requested copies of the accompanying exhibits. Treating Giggleman's letter as a request under the PIA, the Board forwarded it to the Attorney General and requested an opinion as to whether the exhibits Giggleman was seeking were shielded from disclosure by Occupations Code section 801.207(b) and PIA section 552.101. SeeTex. Occ.Code § 801.207(b) (making Board's investigation records confidential); Tex. Gov't Code §§ 552.101 (excepting from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial decision”); .301 (requiring that governmental body request Attorney General's decision when it receives “a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the exceptions under Subchapter C”).⁹ The Attorney General determined that the exhibits were “confidential under section 801.027 of the Occupations Code and must be withheld from disclosure under section 552.101.” Tex. Att'y Gen. OR2010–16424, at 1.

In response to the Attorney General's adverse decision, Giggleman filed suit against the Board in Travis County district court seeking a writ of mandamus to compel the agency to release the exhibits to him. Although Giggleman did not explicitly mention the statute in any of his pleadings in the case, the parties agree that he necessarily invoked section 552.321 of the PIA, which waives sovereign immunity so as to permit a requestor to “file suit for a writ of mandamus compelling a governmental body to make information available for public inspection” if the governmental body refuses to supply information that the requestor contends is public information. SeeTex. Gov't Code § 552.321; see also, e.g., Texas Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex.App.-Austin 1992, no writ) (construing parallel provisions of predecessor statute).¹⁰

Giggleman further requested attorney's fees. PIA section 552.323, subsection (a), requires that “the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails” in a mandamus suit under section 552.301, “except that the court may not assess those costs and fees against a governmental body if the court finds that the governmental body acted in reasonable reliance on,” inter alia, “a written decision of the attorney general.” Tex. Gov't Code § 552.323(a). However, as with his mandamus claim, Giggleman did not explicitly invoke PIA section 552.323(a) as a basis for his attorney's-fees claim. Instead, he cited the UDJA's attorney's-fees provision—“Tex. Civ. Prac. & Rem.Code § 37.009”—and, tracking that statute, “request[ed] that the Court award him costs and reasonable and necessary attorney fees as equitable and just.” SeeTex. Civ. Prac. & Rem.Code § 37.009 (“In any proceeding under [the UDJA], the court may award costs and reasonable and necessary attorney's fees as are equitable and just.”).

Subsequently, the parties filed cross-motions for summary judgment as to Giggleman's mandamus claim; neither motion addressed his pending attorney's-fees claim. In support of his motion, Giggleman argued that the “complaint” the Board's rules required it to provide him included any exhibits or attachments, and that Occupation Code section 801.027(b) was no bar because, contrary to the Attorney General's view, the “investigation record of the board” made confidential by that statute logically could not include the “complaint” that had triggered the investigation. In contrast, while the Board agreed that the exhibits were part of PETA's “complaint,” it insisted that section 801.027(b) and the Board's rules gave it discretion to produce only PETA's allegations to Giggleman while withholding the accompanying exhibits. Following a hearing, the district court granted Giggleman's summary-judgment motion and denied the Board's.¹¹ The order explicitly acknowledged that it was interlocutory and that Giggleman's pending attorney's-fees claim remained to be determined.

Following the summary-judgment hearing, but a few days before the district court had signed the order, the Board had filed a plea to the jurisdiction invoking sovereign immunity as a bar to Giggleman's attorney's-fees claim. ¹² The Board argued that Giggleman could not recover fees under UDJA section 37.009 because he had not asserted any claim under that statute. SeeTex. Civ. Prac. & Rem.Code § 37.009 (“ In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just.”) (emphasis added). It further argued that it had reasonably relied on Attorney General decisions in withholding the exhibits, thereby negating an award under PIA 552.323(a). SeeTex. Gov't Code § 552.323(a). In response to the Board's plea to the jurisdiction, Giggleman filed—on what turned out to be the same day and less than five hours before the district court signed its...