privilege extends to entire communication, including facts contained therein
How later courts described this case
- privilege extends to entire communication, including facts contained therein
- immunity is waived by clear and unambiguous statutory language
- “As we have already held, however, a dismissal constitutes a final determination on the merits of the matter decided. See Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999) (per curiam); Mossler v. Shields, 818 S.W.2d 752, 754 (Tex.1991) (per curiam
Written by the judges who cited it.
The opinion
ACCEPTED
08-24-00388-CV
EIGHTH COURT OF APPEALS
EL PASO, TEXAS
08-24-00338-CV 10/30/2024 9:30 PM
ELIZABETH G. FLORES
CLERK
Case No. 08-24-00388-CV
FILED IN
8th COURT OF APPEALS
IN THE EIGHTH COURT OF APPEALS EL PASO, TEXAS
EIGHTH DISTRICT OF TEXAS 10/30/2024 9:30:23 PM
EL PASO, TEXAS ELIZABETH G. FLORES
Clerk
CITY OF OLMOS PARK, TEXAS
Appellant,
v.
GRABLE, BRANDON J.,
Appellee
APPELLANT’S BRIEF
DENTON NAVARRO RODRIGUEZ BERNAL SANTEE & ZECH, P.C.
Clarissa M. Rodriguez
State Bar No. 24056222
Megan R. Santee
State Bar No. 24002893
Lori W. Hanson
State Bar No. 21128500
2517 N. Main Avenue
San Antonio, Texas 78212
(210) 227-3243
(210) 225-4481 (Facsimile)
ATTORNEYS FOR APPELLANT
CITY OF OLMOS PARK, TEXAS
IDENTITY OF PARTIES AND COUNSEL
Appellant:
City of Olmos Park, Texas
Counsel for Appellant:
Clarissa M. Rodriguez
State Bar No. 24056222
Megan R. Santee
State Bar No. 24002893
Lori W. Hanson
State Bar No. 21128500
DENTON NAVARRO RODRIGUEZ BERNAL SANTEE & ZECH, P.C.
2517 North Main Avenue
San Antonio, Texas 78212
(210) 227-3243
(210) 225-4481 Facsimile
cmrodriguez@rampagelaw.com
mrsantee@rampagelaw.com
lwhanson@rampagelaw.com
Appellee:
Brandon J. Grable
Counsel for Appellee:
Brandon J. Grable
State Bar No. 24086983
GRABLE GRIMSHAW PLLC
1603 Babcock Road, Ste. 280
San Antonio, Texas 78229
(210) 963-5297
(210) 641-3332 Facsimile
brandon@g2.law
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ..................................................... ii
TABLE OF AUTHORITIES ............................................................................... iv-vi
STATEMENT OF THE CASE ............................................................................ vii
STATEMENT REGARDING ORAL ARGUMENT ......................................... viii
STATEMENT ON JURISDICTION ................................................................... viii
ISSUES PRESENTED......................................................................................... viii
STATEMENT OF FACTS .................................................................................. ix
SUMMARY OF THE ARGUMENT .................................................................. xi
ARGUMENT AND AUTHORITIES .................................................................. 1
a. Issue One: The City has not waived its sovereign immunity and the
Trial Court abused its discretion by denying Appellant’s Plea to the
Jurisdiction and Motion for Summary Judgment ...................................... 1
b. Issue Two: The trial court erred in denying the City’s Traditional
Motion for Summary Judgment as there was no evidence the City
violated the Texas Public Information Act ................................................ 7
PRAYER .............................................................................................................. 18
TEX. R. APP. P. 52.3(J) CERTIFICATION ....................................................... 19
CERTIFICATE OF COMPLIANCE ................................................................... 19
CERTIFICATE OF SERVICE ............................................................................ 20
APPENDIX .......................................................................................................... 21
iii
TABLE OF AUTHORITIES
Cases
A & T Consultants, 904 S.W.2d at 674 ......................................................................8
Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997) .....................................7
Amador v. San Antonio State Hosp., 993 S.W.2d 253 (Tex. App.—San Antonio
1999, pet. denied)....................................................................................................1
Bland Independent School Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) ......................2
Cf. Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328 (Tex. App.—Austin
2000, pet. denied)..................................................................................................17
City of El Paso v. Abbott, 444 S.W.3d 315 (Tex. App.—Austin 2014, pet. denied) 3
City of Galveston v. CDM Smith, Inc., 470 S.W.3d 558 (Tex. App.—Houston [14th
Dist.] 2015, pet. denied)..........................................................................................3
City of Georgetown v. Putnam, 646 S.W.3d 61 (Tex. App.—El Paso, 2022) ..........5
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) ..............8
City of Waco v. Kirwan, 298 S.W.3d 618 (Tex. 2009) ..........................................2, 7
Continental Coffee Prds. Co. v. Casarez, 937 S.W.2d 444, n. 2 (Tex. 1996) ...........1
Fannin County Comm. Supervision & Corrs. Dep't v. Spoon, No. 06-13-00103-
CV, 2014 WL 3513388 (Tex. App.—Texarkana July 16, 2014, pet. denied) .......6
GAF Corp. v. Caldwell, 839 S.W.2d 149 (Tex.App.—Houston [14th Dist.] 1992,
orig. proceeding) ...................................................................................................16
Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962) ......................................8
General Servs. Comm'n v. Little-Tex. Insulation Co., 39 S.W.3d 591 (Tex. 2001) ..1
Grant v. Texas State Attorney Gen., No. 14-18-00677-CV, 2019 WL 6876556, at
*4 (Tex. App. —Houston [14th Dist.] Dec. 17, 2019, no pet.) ..............................3
Harris County v. Sykes, 136 S.W.3d 635 (Tex. 2004)...............................................5
Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) ................................................ 16, 17
In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218 (Tex. 2004) (orig.
proceeding) .................................................................................................... 11, 14
In re Fairway Methanol LLC, 515 S.W.3d 480 (Tex. App.—Houston [14th Dist.]
2017, orig. proceeding) .........................................................................................10
In re Tex. Farmers Ins. Exch., 990 S.W.2d 337 (Tex. App.—Texarkana 1999, orig.
proceeding) .................................................................................................... 11, 15
Johnson v. City of Fort Worth, 774 S.W.2d 653 (Tex.1989) ....................................8
Miller v. Gregg County, 546 S.W.3d 410 (tex. App.—Texarkana 2018, aff’d as
modified) .................................................................................................................3
Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012)..............7
iv
Mossler v. Shields, 818 S.W.2d 752 (Tex.1991) (per curiam) ..................................5
National Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex.1993) ..............................16
Ntreh v. Univ. of Tex. at Dallas, 936 S.W.2d 649 (Tex. 1997) .................................2
Osborne v. Johnson, 954 S.W.2d 180 (Tex. App.—Waco 1997, orig. proceeding)
...............................................................................................................................16
Ritchey v. Vasquez, 986 S.W.2d 611 (Tex. 1999) (per curiam) ................................5
Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781 (Tex. 2019) .......................7
Tex. Ass’n of Business v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ..........1
Tex. Dept. Of Transportation v. Jones, S.W.3d 636 (Tex. 2000) ..............................1
Texas Dep't of Transp. v. Jones, 8 S.W.3d 636 (Tex.1999) ......................................2
Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002) 1
Thomas v. Cornyn, 71 S.W.3d 473 (Tex. App.—Austin 2002, no pet.) ...................5
Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) ...............................................2
Univ. of the Incarnate Word v. Redus, 518 S.W.3d 905 (Tex. 2017).................... viii
University of Texas at Dallas v. Ntreh, 947 S.W.2d 202 (Tex. 1997)(modifying in
part) .........................................................................................................................2
University of Texas System v. Franklin Center, 675 S.W.3d at ...............................10
Other Authorities
Texas Attorney General Open Records Decision Order No. 676 at 6-7 (2002)..........
.................................................................................................................... 9, 10, 15
Rules
TEX. GOVERNMENT CODE § 552.001 ....................................................................... vii
TEX. GOVERNMENT CODE § 552.022(a)(1) .............................................................. vii
TEX. GOVERNMENT CODE § 552.103........................................................................ ix
TEX. GOVERNMENT CODE § 552.107.................................................. viii, ix, xi, 9, 13
TEX. GOVERNMENT CODE § 552.107(1) ............................................................ 15, 16
TEX. GOVERNMENT CODE § 552.304........................................................................15
TEX. GOVERNMENT CODE § 552.321............................................. vii, 3, 4, 5, 6, 7, 12
TEX. GOVERNMENT CODE § 552.321(a) .......................................................... vii, x, 4
TEX. GOVERNMENT CODE § 552.3221........................................................................x
TEX. GOVERNMENT CODE § 552.3215..................................................................6, 14
TEX. GOVERNMENT CODE § 552.111........................................................................ ix
TEXAS RULES OF EVIDENCE § 503 .......................................................... xi, 10, 12, 13
TEXAS RULES OF EVIDENCE § 503(b) ................................................................ 11, 16
TEXAS RULES OF EVIDENCE § 503(a)(4)(A) .............................................................10
v
TEXAS RULES OF EVIDENCE § 503(b)(1) ..................................................................15
TEXAS RULES OF EVIDENCE § 503(a)(5)...................................................................16
TEXAS CIVIL PRACTICE AND REMEDIES CODE §51.014(a)(8), ................................ viii
TEX. R. CIV. P. 166a(c)...............................................................................................7
vi
STATEMENT OF THE CASE
Appellee brought a mandamus action to compel disclosure of information
requested by Appellee against the City of Olmos Park, Texas pursuant to TEX.
GOVERNMENT CODE §§ 552.321; 552.321(a); 552.001; and 552.022(a)(1). On May
13, 2024, Appellant filed its Plea to the Jurisdiction and Motion for Summary
Judgment. On August 29, 2024, the Honorable Mary Lou Alvarez, presiding Judge
of the 45th District Court of Bexar County, Texas heard Appellant’s Plea to the
Jurisdiction and Motion for Summary Judgment, and took the matter under
advisement. On September 9, 2024, the Court issued an order denying Appellant’s
Plea to the Jurisdiction and Motion for Summary Judgment.
vii
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument because of the complexity of the facts and
law in this mandamus action to compel Appellant to produce information subject to
Attorney-Client privilege, under TEXAS GOVERNMENT CODE § 552.107.
STATEMENT OF JURISDICTION
The Court has appellate jurisdiction over this matter pursuant to
§51.014(a)(8), TEX. CIV. PRAC. & REM. CODE, which allows interlocutory appeals
from the denial of a plea to the jurisdiction by a governmental unit.1
ISSUE PRESENTED
ISSUE ONE: The City has not waived its governmental immunity
under the Texas Public Information Act and the
Trial Court abused its discretion by denying
Appellant’s Plea to the Jurisdiction and Motion for
Summary Judgment.
ISSUE TWO: The trial court erred in denying the City’s
Traditional Motion for Summary Judgment as there
was no evidence the City violated the Texas Public
Information Act and that Appellant was entitled to
Mandamus.
1
Univ. of the Incarnate Word v. Redus, 518 S.W.3d 905, 906 (Tex. 2017); §51.014 (b).
viii
STATEMENT OF FACTS
Appellee Brandon J. Grable (“Appellee” or “Grable”) filed a Public
Information Act request, pursuant to Texas Government Code Chapter 552, on
September 5, 2023, at 7:13 p.m. when City offices were closed. He requested: “(1)
the operational assessment conducted of the Olmos Park Police Department that was
identified on recent City Council agendas; and (2) and records relied on by the City
to terminate Rene Valenciano.”
On September 20, 2023, the Appellant City (“Appellant” or “City”) submitted
a request to the Texas Attorney General asserting that the operational assessment
should be excluded under TEX. GOV’T CODE §§ 552.103-litigation, 552.107—
attorney-client privilege, and 552.111—agency memoranda. On December 5, 2023,
the City provided Appellee with the Attorney General’s Opinion dated November
29, 2023. The Attorney General agreed that the City could withhold the information
under § 552.107, stating “we find the city has demonstrated the applicability of the
attorney-client privilege to the submitted information.” The Opinion further stated:
“As our ruling is dispositive, we need not address your remaining arguments against
disclosure of this information.”
ix
Despite the Attorney General’s ruling that the operational assessment could
be withheld, Appellee moved for mandamus to compel production and demanded an
in-camera inspection under § 552.3221 of the TEX. GOV’T CODE.
The document in question was created pursuant to an agreement between
Public Safety Solutions, LLC (“PSS”) and Denton Navarro Rodriguez Bernal Santee
& Zech, P.C. (“Law Firm”). PSS was tasked by the Law Firm to perform an
assessment of the City Police Department so that the Law Firm could provide the
best possible legal advice to the City.
The District Court lacked subject matter jurisdiction over this claim because
the City is a municipality and is a government entity organized under the laws of the
State of Texas for purposes of immunity. The City is entitled to immunity from suit
under the doctrine of governmental immunity. The City’s immunity from suit
deprives the Court of jurisdiction and bars Appellee’s claims. Appellee relies upon
TEX. GOV’T CODE § 552.321(a) but that statute clearly does not waive immunity
where a municipality withholds information, which the Attorney General has
determined is privileged and excepted from release.
x
SUMMARY OF THE ARGUMENT
As a matter of law, Appellee has not, and cannot, present in pleading or in
proof, a set of facts that overcomes Appellant’s immunity from suit. The City
properly followed the requirements of state law under the Texas Public Information
Act and complied with the ruling issued by the Attorney General. As such, Grable
cannot show that the Texas Legislature has waived the City’s governmental
immunity and that he has a valid claim for relief under the Act.
Additionally, Appellee did not produce any controverting evidence to
contradict the Attorney General’s Opinion or the facts presented by the City in its
Brief to the Attorney General, which were undisputed, that the City timely asked for
an Attorney General Opinion requesting a ruling to allow the City to withhold the
responsive information under attorney-client privilege communications. The City
provided evidence to support the test under TEX. R. EVID. 503 and TEX. GOV’T CODE
§ 552.107. As such, the City was entitled to summary judgment dismissing Grable’s
claim for mandamus relief and in camera inspection of the documents.
xi
ARGUMENTS AND AUTHORITIES
I. Appellee has not shown a waiver of governmental immunity under the
Texas Public Information Act and the trial court erred in denying the
City’s Plea to the Jurisdiction
A. Standard of Appellate Review- Plea to the Jurisdiction
Subject matter jurisdiction cannot be presumed and cannot be waived. See
Continental Coffee Prds. Co. v. Casarez, 937 S.W.2d 444, 448-49, n. 2 (Tex. 1996).
Plaintiff bears the burden of alleging facts affirmatively showing the trial court has
subject matter jurisdiction. See Tex. Ass’n of Business v. Tex. Air Control Bd., 852
S.W.2d 440 (Tex. 1993). A plea to the jurisdiction is proper to challenge a suit
brought against a governmental entity when it is apparent from the pleadings on file
that the claims asserted are not within any waiver of sovereign immunity. See Tex.
Dept. Of Transportation v. Jones, S.W.3d 636, 637-39 (Tex. 2000); see also,
Amador v. San Antonio State Hosp., 993 S.W.2d 253, 254-255 (Tex. App.—San
Antonio 1999, pet. denied).
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.'" Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849,
854 (Tex. 2002), citing General Servs. Comm'n v. Little-Tex. Insulation Co., 39
S.W.3d 591, 594 (Tex. 2001).
1
For governmental entities, sovereign immunity has two component parts—
immunity from suit and immunity from liability. See Tooke v. City of Mexia, 197
S.W.3d 325, 332 (Tex. 2006). A party suing a governmental entity must allege
consent to suit either by reference to statute or express legislative permission. Id.
(immunity is waived by clear and unambiguous statutory language). A plaintiff who
sues the State must establish the State's consent to suit. Texas Dep't of Transp. v.
Jones, 8 S.W.3d 636, 638 (Tex.1999); see also, University of Texas at Dallas v.
Ntreh, 947 S.W.2d 202 (Tex. 1997)(modifying in part), Ntreh v. Univ. of Tex. at
Dallas, 936 S.W.2d 649, 651 (Tex. 1997).
A court deciding a plea to the jurisdiction is not required to look solely to the
pleadings but may consider evidence and must do so when necessary to resolve the
jurisdictional issues raised. Bland Independent School Dist. v. Blue, 34 S.W.3d 547,
555 (Tex. 2000). If a plea to the jurisdiction challenges the existence of
jurisdictional facts, a court considers relevant evidence submitted by the parties
when necessary to resolve the jurisdictional issues raised even when those facts may
implicate the merits of the cause of action. City of Waco v. Kirwan, 298 S.W.3d
618, 622 (Tex. 2009). If the relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea as a matter of
law. Id.
2
B. Application of Standard
Appellee cannot show that the Texas Legislature has waived the City’s
governmental immunity for Appellee’s claim. Grable asserts a waiver of immunity
under the TPIA. Case law is clear, however, that immunity is waived only to the
extent that a requestor has a valid claim for relief under the TPIA. See, e.g., City of
El Paso v. Abbott, 444 S.W.3d 315, 322 (Tex. App.—Austin 2014, pet.
denied); Grant v. Texas State Attorney Gen., No. 14-18-00677-CV, 2019 WL
6876556, at *4 (Tex. App. —Houston [14th Dist.] Dec. 17, 2019, no pet.) (mem.
Op.). The TPIA “waives immunity for requestors seeking to compel a governmental
body to make information available for public inspection under certain
circumstances.” City of Galveston v. CDM Smith, Inc., 470 S.W.3d 558, 570 (Tex.
App.—Houston [14th Dist.] 2015, pet. denied). By Section 552.321’s “plain terms,
the [TPIA's] waiver of immunity for mandamus relief requires the City to have
‘refuse[d]’ to supply public information.” Id. At 572. Miller v. Gregg County, 546
S.W.3d 410, 418 (tex. App.—Texarkana 2018, aff’d as modified). In this context,
“refuse” means “show or express a positive unwillingness to do or comply with.”
See Id. (citing various dictionaries). Thus, under the plain language of § 552.321’s
waiver of immunity, a requestor must show that the governmental body is
“unwilling” to supply public information. Id.
3
TEX. GOV’T CODE § 552.321(a) provides that a requestor or the attorney
general may file suit for writ of mandamus compelling a governmental body to make
information available for public inspection if the governmental body (1) refuses to
request an attorney general’s decision as provided by Subchapter G or (2) refuses to
(i) supply public information or (ii) information that the attorney general has
determined is public information that is not excepted from disclosure under
Subchapter C.
The Appellee bears the burden to plead facts affirmatively demonstrating
waiver of immunity and subject matter jurisdiction. Here, the City did not refuse to
supply public information and the Appellee agrees it withheld information
determined to be privileged and excepted from disclosure. A plain reading of the
language clearly indicates that a requestor and the Attorney General are positioned
the in the same context of potential actions under § 552.321. The Attorney General
could not issue an opinion and then mandamus the governmental body to have a
court review and disagree with its position. The interpretation by Grable makes the
language under (2)(ii) meaningless as to the Attorney General yet that distinction is
not contained within the subsection. The Attorney General’s recourse is to
mandamus the City for purposes of demanding compliance under (1), (2)(i) or (ii).
There is no qualifier included in the language.
4
The same is true for Appellee. Grable has no recourse to mandamus the City
because it complied with the Attorney General’s opinion. Therefore, the trial court
should have granted the City’s Plea to the Jurisdiction and dismissed Appellee’s
lawsuit with prejudice against refiling.2 Appellee’s pleadings negate jurisdiction
because he admits the City complied with the law.
Despite the failure to plead facts establishing a waiver of immunity and
subject matter jurisdiction, Appellee nevertheless asserts that case law permits a
mandamus action where a requestor disagrees with the Attorney General’s decision
that information may be withheld. In support of this proposition, Appellee cites
Thomas v. Cornyn, 71 S.W.3d 473, 483 (Tex. App.—Austin 2002, no pet.); City of
Georgetown v. Putnam, 646 S.W.3d 61, 69 (Tex. App.—El Paso, 2022) (citing TEX.
GOV’T CODE § 552.321). Appellee’s reliance on this case law is misplaced. In the
Thomas case, the requesting party was intervening in the government suit against
the Attorney General. The Government filed suit contesting the opinion of the
Attorney General that it was required to release information sought by requestor. In
that context, a requestor may intervene to ask for mandamus as to the continued
2
Dismissal pursuant to immunity is a final determination on the merits and must be done with
prejudice. See, Harris County v. Sykes, 136 S.W.3d 635, 640-41 (Tex. 2004) (“As we have already
held, however, a dismissal constitutes a final determination on the merits of the matter decided.
See Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999) (per curiam); Mossler v. Shields, 818
S.W.2d 752, 754 (Tex.1991) (per curiam). In this case, there is a final adjudication that the
Legislature has not waived Harris County's immunity on the facts of this case.”).
5
withholding of information by the Government. However, there is no existing case
in which Appellee is intervening and the Appellant’s compliance with the Attorney
General’s decision does not, by the plain language of the statute, create a waiver of
immunity for Appellee. TEX. GOV’T CODE § 552.321. The proper means of
contesting an Attorney General’s decision is to follow TEX. GOV’T CODE §
552.3215 (allowing for individuals to file complaints concerning alleged violations
of the TPIA with either the local district attorney, local county attorney, or with the
Attorney General of Texas). This Court should overturn the District Court’s ruling,
grant the City’s Plea to the Jurisdiction and dismiss the Appellee’s Petition for Writ
of Mandamus.
Appellant has shown that the statute does not waive immunity for mandamus
relief unless Appellee alleges the City failed to comply with the law. Appellee has
not pled that the City violated the law by withholding information deemed public,
because the City did not withhold any information that was ruled to be releasable,
public information by the Attorney General.
“If a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider relevant evidence on that issue even where those facts may implicate the
merits of the cause of action.” Fannin County Comm. Supervision & Corrs. Dep't v.
Spoon, No. 06-13-00103-CV, 2014 WL 3513388, at *5 (Tex. App.—Texarkana July
6
16, 2014, pet. denied)(mem. op.) (citing City of Waco v. Kirwan, 298 S.W.3d 618,
622 (Tex. 2009)). “In this context, the trial court's review ‘mirrors that of a
traditional summary judgment motion.’” Id. (quoting Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012)). “Initially, the defendant carries
the burden to meet the summary judgment proof standard for its assertion that the
trial court lacks jurisdiction.” Id. (quoting Garcia, 372 S.W.3d at 634). The Attorney
General’s opinion shows, on its face, that the City was entitled to withhold the
operational assessment. [C.R. I, 17-18]. Further, Appellee does not argue that the
City acted contrary to the Attorney General’s determination. Therefore, there is no
waiver of immunity under TEX. GOV'T CODE § 552.321.
II. The trial court erred in denying the City’s Traditional Motion for
Summary Judgment as there was no evidence the City violated the Texas
Public Information Act and that Appellant was entitled to Mandamus
A. Standard of Appellate Review – Motion for Summary Judgment
This Court reviews summary judgments de novo. Scripps NP Operating, LLC
v. Carter, 573 S.W.3d 781, 790 (Tex. 2019). Summary judgment is appropriate if
the moving party establishes that no genuine issue of material fact exists and is
entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). For a defendant
to be entitled to summary judgment, it must either disprove an element of the cause
of action or establish an affirmative defense as a matter of law. Am. Tobacco Co. v.
Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Once the defendant establishes a right
7
to summary judgment, the plaintiff must come forward with evidence or law that
precludes summary judgment. City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678-79 (Tex. 1979).
B. Application of Standard
Appellant respectfully requests this Court reverse the trial court’s order on the
City’s traditional summary judgment motion. In general, matters of statutory
construction are legal questions. See Johnson v. City of Fort Worth, 774 S.W.2d 653,
656 (Tex.1989). Specifically, whether information is subject to the Public
Information Act and whether an exception to disclosure applies to the information
are questions of law. See A & T Consultants, 904 S.W.2d at 674. Because the parties
do not dispute the relevant facts, this is a proper case
for summary judgment. See Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557,
563 (1962). More importantly, this Court should only determine if the City properly
relied upon the Attorney General’s opinion, based on analysis and case law, that the
requested responsive information was attorney-client privileged and therefore not
public information.
In this case, the undisputed facts are that the City timely asked for an Attorney
General Opinion on whether the operational assessment requested could be withheld
as attorney-client privileged communications. [C.R. I, 11-14]. The City’s request
8
was attached to the Petition for Writ of Mandamus and shows the information at
issue was given to the Attorney General for review. [C.R. I, 11-14]. The Attorney
General agreed that PSS created information at the direction of the City Attorney for
the purpose of allowing the City Attorney to provide legal advice, analysis, strategy,
opinions and legal recommendations to their client, the City. [C.R. I, 17-19]. The
Attorney General agreed that the information at issue met the criteria for withholding
privileged information. The information was found to be communication (a)
between the lawyer and its representatives and clients, (b) to facilitate the rendition
of legal services, (c) which was intended to be confidential and (d) was maintained
as confidential. [C.R. I, 17-19].
Appellee appears to challenge whether PSS was the Law Firm’s
representative for purposes of the attorney-client privilege. Appellee has not plead
any facts to contradict the facts as set forth in the City’s brief to the Attorney General
nor the Attorney General’s Opinion. [C.R. I, 11-14, 17-19]. But, as a matter of law,
§ 552.107 of the Act excepts from disclosure “information that . . . an attorney of a
political subdivision is prohibited from disclosing because of a duty to the client
under the Texas Rules of Evidence or the Texas Disciplinary Rules of Professional
Conduct.” TEX. GOV’T CODE § 552.107. In Open Records Decision Number 676, the
Texas Attorney General interpreted § 552.107 of the Act to protect the same kind of
9
information protected under TEX. R. EVID. 503. Tex. Att’y Gen. ORD No. 676 at 4
(2002). TEXAS RULES OF EVIDENCE 503 defines “lawyer's representative” as “one
employed by the lawyer to assist in the rendition of professional legal services.” TEX.
R. EVID. 503(a)(4)(A). Assisting in the rendition of professional legal services must
be a significant purpose for which the representative was hired in the first instance.
University of Texas System v. Franklin Center for Government and Public Integrity,
675 S.W.3d 273, 281 (Tex. 2023)(holding independent contractor hired to
investigate conduct of UT officials was legal representative and attorney-client
privilege applied to its work); see also In re Fairway Methanol LLC, 515 S.W.3d
480, 489 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding) (holding that
Texas law “does not require that the primary purpose of the communication between
a lawyer and a lawyer’s representative be to facilitate the rendition of legal services;
it only requires that the communication be made to facilitate the rendition of legal
services”).
Courts determine if the privilege applies under the TPIA, not by whether the
representative was employed or an independent contractor, but by determining if the
purpose of the work was for legal services and if communications were kept
confidential. University of Texas System v. Franklin Center, 675 S.W.3d at 285-287.
In this case, the Law Firm represented to the Attorney General that PSS was hired
10
by the Law Firm, to provide confidential information to be used in the rendition of
legal services to the City. The Attorney General and case law agree that information
created by such entities is included in the attorney-client privilege. In re E.I. DuPont
de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding)(per
curiam); TEX. R. EVID. 503(b)(the attorney-client privilege protects not only the
communications between the lawyer and client, but also communications between
their representatives).
As a matter of law, the privilege applies to the documents created by PSS
because the attorney’s representatives were communicating with the City Attorney
for the purpose of rendering legal services. In re Tex. Farmers Ins. Exch., 990
S.W.2d 337, 340 (Tex. App.—Texarkana 1999, orig. proceeding) [C.R. I, 12-14].
Appellee cannot refute that PSS was hired to facilitate rendition of legal services to
the Law Firm for the City. As a matter of law, the City is entitled to summary
judgment dismissing Appellee’s claim for mandamus relief and in camera inspection
of the documents.
Appellee contended in his Response to the City’s Motions, that there were
several disputed factual issues that precluded summary judgment:
1. The exact nature and scope of Public Safety Solutions LLC's work for
the City is unclear. The City claims PSS was hired by its attorneys but has provided
no contract, affidavit, or other evidence to support this. The first Appellee learned
11
of this information was when the City filed its motion, so there was no opportunity
to inquire into the veracity of these allegations.
2. It is unclear whether the entire operational assessment consists of privileged
communications or whether it contains separable factual information that should be
disclosed.
3. The City has not established that all individuals involved in creating or
receiving the assessment acted within the scope of an attorney-client relationship.
[C.R. I, 54-59].
Despite the assertions of Appellee, the record is clear that these are not factual
issues that would merit the denial of the Motion for Summary Judgement in this
matter. Appellee filed for mandamus under the TEX. GOV’T CODE § 552.321.
Appellee knew from the City’s brief to the Attorney General last September
that the Law Firm was claiming attorney-client privilege of the information
requested:
The City asserts that the Requested Information constitute a
communication for purposes of the Act because the information
consists of documents created by Public Safety Solutions, LLC (“PSS”)
at the direction of the City Attorney for the City for purposes of
providing legal advice, analysis, strategy, opinions and legal
recommendations to the City.
The Requested Information was made on behalf of DNRBZ in
its capacity as City Attorney. The “client” as defined by Rule 503 is
the City of Olmos Park and the following individuals are individuals
included in the confidential communications and are considered by the
City to be representatives of the client.
City Representatives:
Celia DeLeon (City Manager) Deanna Rickabaugh (Mayor) Will
Brooks (Councilmember)
12
Rene Valenciano (Former Chief of Police)
The following are attorneys, paralegals, and/or staff of legal
counsel retained by the City. Each of the individuals listed is either a
lawyer authorized to engage in the practice of law, or a non-lawyer
employed to assist the firm’s layers in the rendition of professional legal
services; therefore, each person is either a “lawyer” or “representative
of the lawyer” as those terms are defined in Rule 503 of the Texas Rules
of Evidence.
Legal Counsel for the City:
T. Daniel Santee (lawyer)
The City asserts that the Requested Information constitutes
privileged communications, as defined by Texas Rule of Evidence 503,
because these communications were not intended to be disclosed to
third persons other than those to whom disclosure is made in
furtherance of rendition of professional legal services to the client or
those reasonably necessary for the transmission of the communication.
As indicated, the Requested Information contains information obtained
on the request of legal counsel to provide legal advice, legal strategy,
opinion, analysis, and legal recommendations, all of which was
provided by counsel to the City officials and staff in furtherance of the
rendition of professional legal services to the City and was not intended
to be disclosed to third persons. Finally, the Requested Information has
remained confidential and has not been waived through disclosure to a
third party or otherwise.
As such, the Requested Information constitutes confidential
communications between the City and its legal counsel and may not be
disclosed.
For the above stated reasons, the City respectfully requests that
your office issue an opinion that the Requested Information, should be
excepted from disclosure pursuant to Section 552.107 of the Act.
[C.R. I, 13-14].
In this argument, the City identified the test for attorney-client privilege under
TEX. R. EVID. 503 and articulated the reasons it had complied with the requirements
13
for retaining that privilege. [C.R. I, 11-15]. Additionally, without the benefit of this
being produced during discovery, in any litigation, the trial court has no standard
against which to make the requested determination by Appellant that some or all of
the information is separable facts. Compare In re E.I. DuPont de Nemours and Co.,
136 S.W.3d 218 (Tex. 2004)(in the suit underlying the mandamus, DuPont asserted
claims of attorney-client privilege and provided a prima facie showing of privilege.
The appellate court ruled that the trial court erroneously ordered the disclosure of
privileged information which cannot be corrected in a normal appeal). Appellee
asks the trial court to waive attorney client privilege for “separable factual
information” without the benefit of an underlying lawsuit. This request for relief
certainly goes beyond what the provisions of § 552.3215 were meant to encompass.
If the trial court orders the disclosure of any of the documents, then the City must
mandamus the trial court’s order on the mandamus to correct the error on appeal.
Id. The City would then have a higher burden of proof on its mandamus than
Appellee claims to be required by law in his mandamus under the Texas Public
Information Act. This should not be the state of the law.
Additionally, Appellee asserted at the hearing held on August 29, 2024, that
the Attorney General did not involve him in the process. The Appellant, or any
requestor, has the right to provide information to the Attorney General on any
14
request submitted for their review, under § 552.304. The Attorney General opinion
does not identify that Appellee timely provided any argument in support of his
position. [C.R. I, 17-19]. Therefore, Appellee failed to avail himself of his statutory
right to participate in the process.
The Attorney General reviewed the responsive documents, the brief, and
arguments by the City, and properly analyzed that:
Section 552.107(1) of the Government Code protects information
coming within the attorney-client privilege. When asserting the
attorney-client privilege, a governmental body has the burden of
providing the necessary facts to demonstrate the elements of the
privilege in order to withhold the information at issue. Open Records
Decision No. 676 at 6-7 (2002). First, a governmental body must
demonstrate that the information constitutes or documents a
communication. Id. at 7. Second, the communication must have been
made “to facilitate the rendition of professional legal services” to the
client governmental body. TEX. R. EVID. 503(b)(1). The privilege
does not apply when an attorney or representative is involved in some
capacity other than that of providing or facilitating professional legal
services to the client governmental body. In re Tex. Farmers Ins. Exch.,
990 S.W.2d 337, 340 (Tex. App.—Texarkana 1999, orig. proceeding)
(attorney-client privilege does not apply if attorney acting in a capacity
other than that of attorney). Governmental attorneys often act in
capacities other than that of professional legal counsel, such as
administrators, investigators, or managers. Thus, the mere fact that a
communication involves an attorney for the government does not
demonstrate this element. Third, the privilege applies only to
communications between or among clients, client representatives,
lawyers, and lawyer representatives. TEX. R. EVID. 503(b)(1).
Thus, a governmental body must inform this office of the identities and
capacities of the individuals to whom each communication at issue has
been made. Lastly, the attorney-client privilege applies only to a
15
confidential communication, id., meaning it was “not intended to be
disclosed to third persons other than those: (A) to whom disclosure is
made to further the rendition of professional legal services to the client;
or (B) reasonably necessary to transmit the communication.” Id.
503(a)(5). Whether a communication meets this definition depends on
the intent of the parties involved at the time the information was
communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex.
App.—Waco 1997, orig. proceeding). Moreover, because the client
may elect to waive the privilege at any time, a governmental body must
explain that the confidentiality of a communication has been
maintained. Section 552.107(1) generally excepts an entire
communication that is demonstrated to be protected by the attorney-
client privilege unless otherwise waived by the governmental body. See
Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends
to entire communication, including facts contained therein).
[C.R. I, 17-19].
In Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex.1991), the Supreme court held
the attorney-client privilege protects confidential communications between a client
and attorney made for the purpose of facilitating the rendition of professional legal
services to the client. See TEX. R. EVID. 503(b). While the privilege extends to the
entire communication, including facts contained therein, see GAF Corp. v.
Caldwell, 839 S.W.2d 149, 151 (Tex.App.—Houston [14th Dist.] 1992, orig.
proceeding), a person cannot cloak a material fact with the privilege merely by
communicating it to an attorney. See, e.g., National Tank Co. v. Brotherton, 851
S.W.2d 193, 199 (Tex.1993)(internal citations omitted).
The Attorney General ruled that:
16
The city states the information at issue consists of a communication
between attorney representatives, attorneys for the city, and city
officials. The city informs us the communication at issue was prepared
at the direction of and delivered to the city attorney. The city explains
this communication was made for the purpose of providing professional
legal services to the city, and this communication was not intended to
be disclosed and has not been disclosed to non-privileged parties. Upon
review, we find the city has demonstrated the applicability of the
attorney-client privilege to the submitted information. Accordingly, the
city may withhold the submitted information under section 552.107(1)
of the Government Code.2 Cf. Harlandale Indep. Sch. Dist. v. Cornyn,
25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied) (concluding
attorney’s entire investigative report was protected by attorney-client
privilege where attorney was retained to conduct investigation in her
capacity as attorney for purposes of providing legal services and
advice).
[C.R. I, 17-19].
Although Appellee alleges that there may be facts that are separable, without
being able to identify any facts as a “material” fact, there is no basis to determine if
a fact is “material” or not part of a confidential communication. The communications
between PSS and the City’s Attorney made confidentially, and for the purpose of
facilitating legal services, are protected. Huie, 922 S.W.2d at 924. The City must be
able to confidentially communicate information to its’ Attorney, and the Attorney’s
investigator, to obtain the best possible legal guidance.
17
CONCLUSION
Appellee cannot show that the Texas Legislature has waived the City’s
governmental immunity for Appellee’s claim. Therefore, this Court should grant
Appellant’s Plea to the Jurisdiction and dismiss Appellee’s lawsuit with prejudice.
Additionally, summary judgment is appropriate if the moving party
establishes that no genuine issue of material fact exists and is entitled to judgment
as a matter of law. Appellant has established that no genuine issue of material fact
exists, and this Court should grant Appellant’s Motion for Summary Judgement and
dismiss Appellee’s lawsuit with prejudice.
PRAYER
Appellant requests this Honorable Court enter an order directing the Trial
Court to reverse her September 9, 2024, order and enter an Order Granting
Appellant’s Plea to the Jurisdiction and/or Motion for Summary Judgment and Order
Appellee’s claims be dismissed with prejudice as to Appellant City; that Appellee
take nothing by this lawsuit and for such other relief to which Appellant may show
itself justly entitled.
SIGNED this 30th day of October 2024.
DENTON NAVARRO RODRIGUEZ BERNAL SANTEE & ZECH
A Professional Corporation
2517 N. Main Avenue
San Antonio, Texas 78212
210/227-3243
18
210/225-4481 Facsimile
cmrodriguez@rampagelaw.com
mrsantee@rampagelaw.com
lwhanson@rampagelaw.com
BY: /s/ Lori W. Hanson
CLARISSA M. RODRIGUEZ
State Bar No. 24056222
MEGAN R. SANTEE
State Bar No. 24002893
LORI W. HANSON
State Bar No. 21128500
COUNSEL FOR CITY APPELLANT
CITY OF OLMOS PARK, TEXAS
TEX. R. APP. P. 52.3(J) CERTIFICATION
Pursuant to TRAP 52.3(j), the undersigned certifies that she has reviewed the
above Brief of Appellant and concluded that every factual statement in the brief is
supported by competent evidence included in the appendix and each document
included in the appendix is true and correct copy of the original.
/s/ Lori W. Hanson
Lori W. Hanson
CERTIFICATION OF COMPLIANCE
The undersigned hereby certifies that this document was computer generated
and the word count of the document, except for those items “excluded” by section
T.R.A.P. 9.4(i)(l), is 4,927, based on the count of the computer program used to
prepare the document.
/s/ Lori W. Hanson
Lori W. Hanson
19
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has
been served electronically on the following counsel of record for Appellee on
October 30, 2024:
Brandon J. Grable E-NOTIFICATION
GRABLE GRIMSHAW PLLC
1603 Babcock Road, Ste. 280
San Antonio, Texas 78229
Email: brandon@g2.law
/s/ Lori W. Hanson
Lori W. Hanson
20
Case No. 08-24-00388-CV
IN THE EIGHTH COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
CITY OF OLMOS PARK, TEXAS
Appellant.
APPENDIX TO APPELLANTS BRIEF
DENTON NAVARRO RODRIGUEZ BERNAL SANTEE & ZECH, P.C.
Clarissa M. Rodriguez
State Bar No. 24056222
Megan R. Santee
State Bar No. 24002893
Lori W. Hanson
State Bar No. 21128500
2517 N. Main Avenue
San Antonio, Texas 78212
(210) 227-3243
(210) 225-4481 (Facsimile)
ATTORNEYS FOR APPELLANT
CITY OF OLMOS PARK, TEXAS
21
APPENDIX INDEX
1. Order Denying Appellees Plea to the Jurisdiction and Motion for Summary
Judgment, dated September 9, 2024
22
CITY APPELLANTS BRIEF
OF OLMOS PARK, TEXAS'
APPENDIX
NOTICE ITEM 1
OF APPEAL
ORDER DENYING
EXHIBIT ACITY OF
OLMOS PARK'S PLEA TO THE
JURISDICTION AND MOTION
FOR SUMMARY JUDGMENT,
DATED SEPTEMBER 9, 2024
NO. 2023CI25719 JP
BRANDON J. GRABLE, § IN THE DISTRICT COURT
Plaintiff §
§
V. § 45TH JUDICIAL DISTRICT
§
CITY OF OLMOS PARK, TEXAS §
Defendant § OF BEXAR COUNTY, TEXAS
ORDER
On August 29, 2024, the counsel of record for each party appeared in the above-styled and
numbered cause. At that time, the Court announced in open session its ruling regarding a motion
titled Defendant’s Plea to the Jurisdiction and Motion for Summary Judgment, filed on April 14,
2024.
After examining all of the pleadings filed with the court, the evidence on file, other
documents on file, and arguments of counsel, the Court ORDERS as follows:
IT IS HEREBY, ORDERED, ADJUDGED, and DECREED that Defendant’s Plea to the
Jurisdiction and Motion for Summary Judgment, in all respects, is DENIED.
9/9/2024 2:23:11 pm
SIGNED ON
__________________________________________
THE HONORABLE MARY LOU ALVAREZ
45TH JUDICIAL DISTRICT COURT
Grable v. Olmos Park: Order on Plea to the Juris. And Mtn for SJ Page 1 of 2
PREPARED BY AND APPROVED AS TO FORM ONLY:
GRABLE GRIMSHAW PLLC
/s/ Brandon J. Grable
BRANDON J. GRABLE
Texas State Bar No. 24086983
brandon@g2.law
1603 Babcock Road, Suite 280
San Antonio, Texas 78229
Telephone: (210) 963-5297
Facsimile: (210) 641-3332
Counsel for Plaintiff
APPROVED AS TO FORM ONLY:
DENTON NAVARRO RODRIGUEZ BERNAL
SANTEE & ZECH
/s/ Lori W. Hanson (with permission)
CLARISSA M. RODRIGUEZ
Texas State Bar No. 24056222
cmrodriguez@rampagelaw.com
LORI W. HANSON
Texas State Bar No. 21128500
lwhanson@rampagelaw.com
2517 N. Main Avenue
San Antonio, Texas 78212
Telephone: (210)227-3243
Facsimile: (210) 225-4481
Counsel for Defendant
Grable v. Olmos Park: Order on Plea to the Juris. And Mtn for SJ Page 2 of 2
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Kimberley Valdez on behalf of Clarissa Rodriguez
Bar No. 24056222
kvaldez@rampagelaw.com
Envelope ID: 93769496
Filing Code Description: Brief Requesting Oral Argument
Filing Description: Appellants Brief
Status as of 11/1/2024 10:53 AM MST
Associated Case Party: City of Olmos Park, Texas
Name BarNumber Email TimestampSubmitted Status
Kimberley Valdez kvaldez@rampagelaw.com 10/30/2024 9:30:23 PM SENT
Megan Santee mrsantee@rampagelaw.com 10/30/2024 9:30:23 PM SENT
Lori Hanson lwhanson@rampagelaw.com 10/30/2024 9:30:23 PM SENT
Clarissa MRodriguez cmrodriguez@rampagelaw.com 10/30/2024 9:30:23 PM SENT
Associated Case Party: BrandonJ.Grable
Name BarNumber Email TimestampSubmitted Status
Brandon J.Grable brandon@g2.law 10/30/2024 9:30:23 PM SENT