Greg Abbott, Attorney General of Texas v. Texas Board of Nursing

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00154-CV

Greg Abbott, Attorney General of Texas, Appellant

v.

Texas Board of Nursing, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. D-1-GN-07-002685, HONORABLE DARLENE BYRNE, JUDGE PRESIDING

CONCURRING OPINION

I agree that the facsimile numbers at issue are not confidential by law, but for

different reasons than the majority, which relies on the notion that an “emergency response provider”

must be an agency or entity rather than an individual.

The Board’s claim of confidentiality ultimately turns on which noun is modified by

the prepositional phrase “of the [emergency response] provider [or providers]” in government code

section 418.176, subsection (a)(3):

(a) Information is confidential if the information is collected, assembled, or

maintained by or for a governmental entity for the purpose of preventing,

detecting, responding to, or investigating an act of terrorism or related

criminal activity and:

(1) relates to the staffing requirements of an emergency response

provider, including a law enforcement agency, a fire-fighting agency,

or an emergency services agency;

(2) relates to a tactical plan of the provider; or

(3) consists of a list or compilation of pager or telephone numbers,

including mobile and cellular telephone numbers, of the [emergency

response] provider [or providers].

Tex. Gov’t Code Ann. § 418.176(a)(3) (West 2005) (emphasis added).1 The prepositional phrase

“. . . of the [emergency response] provider [or providers]” could be viewed as modifying “list or

compilation . . .,” in which case subsection (a)(3) would protect the emergency response provider’s

or providers’ list or compilation of pager or telephone numbers. This would mean that the Board’s

compilation of nurses’ facsimile numbers would not be protected because the Board concedes that

it is not an “emergency response provider.” Another potential interpretation is that “. . . of the

[emergency response] provider [or providers]” modifies “pager or telephone numbers,” such that the

provision protects a “list or compilation” of the emergency response provider’s or providers’ pager

or telephone numbers. Under this interpretation, the Board’s compilation of nurses’ facsimile

numbers would be protected, assuming the nurses are “emergency response providers” and the

Board collected, assembled, or maintained the numbers “for the purpose of preventing, detecting,

responding to, or investigating an act of terrorism or related criminal activity.” Not surprisingly, the

Board relies on the latter interpretation and the Attorney General the former.

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The parties agree that “provider” as used in paragraphs (2) and (3) of section 418.176,

subsection (a), necessarily refers to “emergency response provider,” the term used in paragraph (1)

of that provision. And we are to construe “[emergency response] provider” to extend to both its

singular and plural forms. See Tex. Gov’t Code Ann. § 311.012(b) (West 2005) (Code Construction

Act) (“The singular includes the plural and the plural includes the singular.”).

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There is support for the Board’s interpretation. The Code Construction Act

requires us to construe words and phrases “according to the rules of grammar and common usage,”

id. § 311.011(a) (West 2005), and one general rule of grammar is that modifying words or phrases

are presumed to apply to the words or phrases that immediately precede them and not those more

remote. See William Strunk, Jr. & E. B. White, The Elements of Style 30 (4th ed. 2000) (“Modifiers

should come, if possible, next to the words they modify.”); Bryan A. Garner, Garner’s Modern

American Usage 431 (1998) (“When a word refers to an antecedent, the true antecedent should

generally be the closest possible one.”); see also Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578,

580 (Tex. 2000) (discussing the statutory construction canon of “last antecedent,” which “states

that a qualifying phrase in a statute or the Constitution must be confined to the words and phrases

immediately preceding it to which it may, without impairing the meaning of the sentence,

be applied”). However, this rule “‘is neither controlling nor inflexible,’” Jim Walter Homes, Inc.,

34 S.W.3d at 580 (quoting City of Corsicana v. Willmann, 216 S.W.2d 175, 176 (Tex. 1949)), and

it remains that we must also construe the words in context, and this may reveal contrary legislative

intent. See Willmann, 216 S.W.2d at 176-77; Stewman Ranch, Inc. v. Double M Ranch, Ltd.,

192 S.W.3d 808, 812-13 (Tex. App.—Eastland 2006, pet. denied); see also Tex. Gov’t Code Ann.

§ 311.011(a) (“Words and phrases shall be read in context and construed according to the rules of

grammar and common usage.”) (emphasis added). The context of its use within section 418.176,

subsection (a), reflects legislative intent that the phrase “of the [emergency response] provider [or

providers]” in paragraph (3) modify “list or compilation” rather than “pager or telephone numbers.”

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As the Attorney General observes, each of the preceding paragraphs of subsection (a)

refers to information that would be utilized by an emergency response provider in “preventing,

detecting, responding to, or investigating an act of terrorism or related criminal activity.”

Paragraph (1) protects information relating to “the staffing requirements of an emergency response

provider,” while paragraph (2) protects information relating to “a tactical plan of the provider.” The

legislature’s evident focus in these provisions is information that emergency response providers

utilize in combating terrorism rather than simply information about emergency response providers

that someone could utilize to that end.

The Attorney General’s interpretation of paragraph (3) is consistent with the

structure of the preceding paragraphs and the policies they reflect—paragraph (3) protects an

emergency response provider’s “list or compilation” of pager or telephone numbers that it would use

in combating terrorism. The Board’s interpretation—paragraph (3) protects an emergency response

provider’s own pager or telephone numbers that are put into a list or compiled by someone other than

an emergency response provider—would not be consistent with the structure and policies of the other

paragraphs. Also, if the legislature intended such numbers to be protected, it presumably would have

said so more directly and clearly—e.g., just stating that “an emergency response provider’s pager or

telephone number” is confidential—instead of emphasizing a “list or compilation” of numbers.

This analysis negates the central premise of the Board’s claim of confidentiality, and

I would reverse the district court’s judgment on this ground rather than relying on the majority’s

theory that “emergency response providers” are solely agencies and not individuals. I question the

majority’s conclusions that only an agency and not an individual would possess or utilize the

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“tactical plan” referenced in paragraph (2) or “list or compilation” referenced in paragraph (3),

although I agree that “staffing requirements” in paragraph (1) may imply some sort of entity. Also,

while I further agree with the majority that ejusdem generis may give guidance regarding the scope

of “emergency response provider,” it is not clear to me, considering section 418.176, subsection (a),

as a whole, that the legislature’s references to “a law enforcement agency, a fire-fighting agency,

or an emergency services agency” in paragraph (1) were intended to exclude individuals from

“[emergency response] provider” as used in the succeeding paragraphs, as opposed to illustrating the

sorts of services that an “emergency response provider” would provide. See also Dawkins v. Meyer,

825 S.W.2d 444, 447 (Tex. 1992) (“Ultimately, the goal of every rule of construction, including

the rule of ejusdem generis, is to determine the intent of those who wrote the words in question. The

rule of ejusdem generis can, therefore, only be used as an aid in ascertaining the intended coverage

of [the provision], not to subvert that intent once ascertained.”). In any event, I would decide this

case on the ground I have addressed above and not reach this issue.

__________________________________________

Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Filed: February 3, 2010

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