City of Houston, Annise D. Parker, Kelly Dowe, Ronald C.Green, Brenda Stardig, Jerry Davis, Ellen Cohen, Dwight Boykins, Dave Martin, Richard Nguyen, Oliver Pennington, Ed Gonzalez, Robert Gallegos, Mike Laster, Larry Green, Stephen Costello v. Houston Municipal Employee Pension System

Reversed and Rendered in part, Remanded in Part, Affirmed in Part, and

Opinion filed November 22, 2016.

In the

Fourteenth Court of Appeals

NO. 14-15-00865-CV

CITY OF HOUSTON, SYLVESTER TURNER, KELLY DOWE, CHRIS

BROWN, BRENDA STARDIG, JERRY DAVIS, ELLEN COHEN, DWIGHT

BOYKINS, DAVE MARTIN, STEVE LE, GREG TRAVIS, KARLA

CISNEROS, ROBERT GALLEGOS, MIKE LASTER, LARRY GREEN,

MIKE KNOX, DAVID ROBINSON, MICHAEL KUBOSH, AMANDA

EDWARDS, AND JACK CHRISTIE, Appellants

V.

HOUSTON MUNICIPAL EMPLOYEE PENSION SYSTEM, Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2015-35252

OPINION

Appellee Houston Municipal Employees Pension System (“HMEPS”)

brought a verified petition against appellants City of Houston (the “City”), Annise

D. Parker, Kelly Dowe, Ronald C. Green, Brenda Stardig, Jerry Davis, Ellen

Cohen, Dwight Boykins, Dave Martin, Richard Nguyen, Oliver Pennington, Ed

Gonzalez, Robert Gallegos, Mike Laster, Larry Green, Stephen Costello, David

Robinson, Michael Kubosh, C.O. “Brad” Bradford, and Jack Christie (collectively,

the “City appellants”1) for writs of mandamus compelling the City appellants (1) to

provide requested employee information, as required by article 6243h, “Municipal

Pension System in cities of 1,500,000 or more,” and the Texas Public Information

Act (“TPIA”); and (2) to allocate funding in the City budgets to cover HMEPS

members and to make pickup payments on their behalf, as required by article

6243h. See Tex. Rev. Civ. Stat. Ann. art. 6243h (West 2010); Tex. Gov’t Code

Ann. §§ 552.221, 552.321 (West 2012). The City appellants filed a plea to the

jurisdiction, which the trial court denied. The City appellants appealed.

Because we determine that the trial court erred in denying the City

appellants’ plea to the jurisdiction regarding the City’s alleged failures to comply

with article 6243h, we reverse and render judgment on those claims. With regard

to HMEPS’s mandamus claims against the City officials regarding their alleged

failures to fund pension contributions, we reverse and remand with instructions for

the trial court to provide HMEPS a reasonable opportunity to properly plead ultra

vires claims. We affirm the trial court’s denial of the City appellants’ plea to the

jurisdiction regarding the City officials’ alleged failures to comply with the

information disclosure requirements of article 6243h. With regard to alleged

failures to comply with the TPIA, we affirm the trial court’s denial of the City

1

Pursuant to Texas Rule of Appellate Procedure 7.2(a), we have substituted the names of

the current City officers as Sylvester Turner for Mayor Parker, Chris Brown for Controller

Green, and Steve Le, Greg Travis, Karla Cisneros, Mike Knox, and Amanda Edwards, for

Councilmembers Nguyen, Pennington, Gonzalez, Costello, and Bradford.

2

appellants’ plea to the jurisdiction as to the City, and we reverse the denial of the

City appellants’ plea and render judgment as to such claims against defendants

other than the City or its officer for public information.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2011, the City announced plans to remove employees from its Convention

and Entertainment Facilities Department, which historically had operated and

maintained municipal convention and entertainment facilities, and to outsource

these services and employees to local government corporation Houston First

Corporation (“HFC”). In response, HMEPS’s board of trustees adopted a

resolution that the definition of “employee” in article 6243h includes full-time

employees of local government corporations controlled by the City, upon a

determination by the board’s External Affairs Committee.

The City then formed nonprofit corporation Houston First Foundation

(“HFF”) and indicated that HFF would employ all the City employees who were to

have joined HFC. The HMEPS board adopted another resolution reiterating its

construction of “employee” and announcing that employees of any entity

controlled directly or indirectly by the City are considered employees for purposes

of membership in the pension system unless the External Affairs Committee

expressly determines otherwise.

Then the City formed another nonprofit corporation called Convention and

Cultural Services, Inc. (“CCSI”), to operate in conjunction with HFC whereby

CCSI would employ and lease the workforce to its only client HFC. The External

Affairs Committee issued a resolution that these leased workers would remain as

members of the pension plan as part of a control group.

The City transferred its convention and entertainment services and

3

employees to HFC and CCSI accordingly. Certain individuals who began working

for CCSI but otherwise were eligible to retire sought retirement benefits from

HMEPS. Other individuals working for CCSI sought to defer retirement status and

to stop having contributions to HMEPS deducted from their salaries. After the

External Affairs Committee concluded that these individuals all remained

employees and members of the pension system, such individuals (the “Klumb

plaintiffs”) filed suit against HMEPS and its board (the “HMEPS defendants”),

alleging ultra vires and breach-of-contract claims.2 The City joined this suit as to

the ultra vires claims.

The HMEPS defendants filed a plea to the jurisdiction, arguing that article

6243h precludes judicial review of the HMEPS board’s “final and binding”

decisions interpreting the statute and determining eligibility for membership and

benefits, and that sovereign immunity bars the breach-of-contract claims because

violation of a meet-and-confer agreement (“MCA”) cannot serve as an ultra vires

claim. The trial court granted the HMEPS defendants’ plea and dismissed the

Klumb plaintiffs’ and the City’s claims, and the First Court of Appeals affirmed

that decision. Klumb v. Houston Mun. Employees Pension Sys., 405 S.W.3d 204,

228 (Tex. App.—Houston [1st Dist.] 2013), aff’d, 458 S.W.3d 1 (Tex. 2015).

On review, the Texas Supreme Court affirmed. The Klumb Court concluded

that as a matter of law the HMEPS board did not act ultra vires in issuing its

resolutions construing the term “employee” and instead acted within its

unreviewable, discretionary authority to interpret the statute under article 6243h.

See Tex. Rev. Civ. Stat. Ann. art. 6243h, § 2(x),3 (y)4; Klumb, 458 S.W.3d at 10–

2

The Klumb plaintiffs also alleged various constitutional violations not at issue here.

3

Under section 2(x):

The pension board shall manage the pension fund under this Act and under the

4

11 (“The breadth of the pension board’s authority under Article 6243h is

inescapable. . . . Courts may not review the board’s actions absent a manifest

conflict with express statutory terms.”).

Next, the Klumb Court determined that there were no viable ultra vires

claims in connection with the HMEPS board’s delegation of decision-making

authority to the External Affairs Committee allegedly in violation of a July 2011

MCA between HMEPS and the City. 458 S.W.3d at 12. The Klumb Court noted

that article 6243h expressly permits such delegation. See Tex. Rev. Civ. Stat. Ann.

art. 6243h, § 3(k)5; Klumb, 458 S.W.3d at 12. The Klumb plaintiffs and the City

Internal Revenue Code of 1986, as amended, and may:

(1) adopt, for the administration of the pension fund, written rules and guidelines;

(2) interpret and construe this Act and any summary plan, descriptions, or benefits

procedures, except that each construction must meet any qualification

requirements established under Section 401, Internal Revenue Code of 1986, as

amended;

(3) correct any defect, supply any omission, and reconcile any inconsistency that

appears in this Act in a manner and to the extent that the pension board considers

expedient to administer this Act for the greatest benefit of all members;

(4) determine all questions, whether legal or factual, relating to eligibility for

membership, service, or benefits or relating to the administration of the pension

fund to promote the uniform administration of the pension fund for the benefit of

all members and retirees; and

(5) establish and maintain records necessary or appropriate for the proper

administration of the pension fund.

Tex. Rev. Civ. Stat. Ann. art. 6243h, § 2(x).

4

Tex. Rev. Civ. Stat. Ann. art. 6243h, § 2(y) (“The determination of any fact by the

pension board and the pension board’s interpretation of this Act are final and binding on any

interested party, including members, deferred participants, retirees, eligible survivors,

beneficiaries, and the city.”).

5

Tex. Rev. Civ. Stat. Ann. art. 6243h, § 3(k) (“On majority vote of the trustees, the

pension board may allocate among the trustees the responsibilities of the pension board under

this Act and may designate any person who is not a trustee, including the executive director and

other employees, to carry out the responsibilities of the pension board under this Act.”).

5

argued that the July 2011 MCA amended the statute and divested the board of its

delegation power, and therefore because the resolution violated the terms of the

MCA, it was ultra vires. Klumb, 458 S.W.3d at 12. The Klumb Court rejected this

argument. Id. In doing so, the Court explained, regardless of whether the parties

deem the contract to amend the statute, noncompliance with a contract such as the

MCA does not give rise to an ultra vires claim, but rather presents a breach-of-

contract claim that cannot be maintained absent a waiver of sovereign immunity,

which was not alleged or supported on the record before the Court. See id. The

Court concluded that the Klumb plaintiffs and the City failed to plead actionable

claims against the HMEPS defendants. Id. at 17.

In April 2015, HMEPS sent a letter to Dowe, the Director of the City’s

Finance Department, and Dawn Ullrich, who was the Director of the City’s

Convention and Entertainment Facilities Department as well as President of HFC

and HFF and Director of CCSI, requesting that they designate a person who would

provide employee and payroll information to HMEPS. HMEPS also requested

various information for HFC, HFF, and CCSI employees. In May 2015, HMEPS

sent two additional requests—one to Mayor Parker and one to Ullrich. According

to HMEPS, the City appellants refused to provide all of the requested information.

HMEPS further alleged that the City’s fiscal year 2016 budget failed to allocate to

HMEPS the necessary finds to cover the HFC, HFF, and CCSI employees and to

account for the pickup contributions.

In June 2015, HMEPS filed suit against the City appellants. 6 HMEPS

petitioned for a writ of mandamus to compel the City appellants to provide

statutorily-required and requested employee information now and in the future.

6

HMEPS also filed claims against HFC, HFF, CCSI, and Ullrich. The trial court later

granted HMEPS’s motion for a partial nonsuit without prejudice as to these defendants.

6

HMEPS alleged that its board’s interpretation of the term “employee” was final

and binding on the City under article 6243h and Klumb. HMEPS alleged that by

refusing to provide information on the HFC, HFF, and CCSI employees the City

appellants failed to perform a purely ministerial function required by article 6243h

and acted ultra vires. HMEPS also alleged that the City appellants violated the

TPIA by refusing to provide the requested employee information.

In addition, HMEPS petitioned for a writ of mandamus to compel the City

appellants to allocate funding in the current and all future proposed City budgets to

include the contributions owed for HFC, HFF, and CCSI employees’ salaries as

members of the pension system and to make pickup payments on their behalf.

HMEPS alleged that article 6243h requires the City to make periodic payments to

the pension fund in an amount based on the combined salaries of all the

“members” of the system, as judicially confirmed to include all HFC, HFF, and

CCSI employees. Further, HMEPS alleged that article 6243h requires the City to

pick up and pay any biweekly contributions made by the contributing members of

the fund. By refusing to perform such purely ministerial acts required by article

6243h, HMEPS alleged that the City appellants acted ultra vires. HMEPS sought a

writ a mandamus to compel the City appellants to allocate funding in the current

budget for the statutorily-required payments of 27.36% of the payroll of the HFC,

HFF, and CCSI employees, to make such allocated payments, and to make such

allocations and payments in the future. According to HMEPS, the manner for

calculating the City’s contributions to HMEPS comes from a July 2011 MCA

entered into between the City and HMEPS, which “agreement is enforceable and

binding” on the City under article 6243h.

The City filed a counterclaim against HMEPS and a third-party action

against the members of the HMEPS board. The City alleged that HMEPS

7

breached the MCA by seeking to impose a unilateral amendment of the MCA

retroactively and by delegating authority to the External Affairs Committee. The

City alleged it was entitled to a declaratory judgment that HMEPS breached the

MCA, that HMEPS cannot enforce any alleged duties regarding pension

contributions under the MCA which arise from its own breach, and that the City

has not breached the MCA. The City also alleged ultra vires claims to correct

HMEPS’s violation of its statutory obligations related to its attempts to change the

definition of “employee.” In the alternative, conditioned on HMEPS’s prevailing

on its claims, the City requested declaratory and injunctive relief to prohibit

inverse condemnation. The City further requested declaratory and injunctive relief

to correct actions that are arbitrary and capricious, adversely affect property rights,

or otherwise violate constitutional rights. The City petitioned for mandamus relief

to correct clear abuses of discretion by HMEPS and its board. Finally, the City

alleged that HMEPS and its board violated the Open Meetings Act.

The City appellants answered and, among other defenses, pleaded immunity

from suit as a jurisdictional bar and lack of standing. HMEPS and its board

answered and, among other defenses, likewise pleaded immunity from suit and

from liability.

It is the City’s immunity at issue here. The City appellants filed a plea to the

jurisdiction arguing:

 that HMEPS’s claims against the City for alleged ultra vires acts

under article 6243h and the TPIA were barred because such claims are

only allowed against government officials (issues I(f) & I(g))7;

7

Because the City appellants’ plea arguments are organized in a slightly different manner

on appeal, our numbers correspond to the appellate briefing. “I” and “II” reference the City

appellants’ two issues, and “a” through “h” reference the eight subissues in their first issue.

8

 that HMEPS’s claims seeking statutory contributions (a) as calculated

based on the MCA formula were barred because contractual

obligations cannot be the basis of ultra vires claims and (b) for past

periods were barred because only prospective relief is allowed under

the ultra vires exception to immunity (issues I(a) & I(b));

 that HMEPS’s claims seeking contributions and disclosure of

information were barred because article 6243h is too vague and

imprecise to create a ministerial duty (issue I(d));

 that HMEPS’s claims seeking budgetary appropriation and allocation

were barred as discretionary acts (issue I(e));

 that to the extent HMEPS requests enforcement of article 6243h rather

than the MCA, HMEPS’s claims seeking contributions were barred

because it cannot prove a statutory violation (issue I(c));

 that HMEPS’s claims seeking disclosure of information were barred

because (a) HMEPS modified its request under a rule 11 agreement

and the City appellants have not refused to provide requisite

information in their possession and (b) HMEPS should not have

nonsuited the entities in actual possession of the requested

information and, regardless, could use third-party discovery or TPIA

requests to obtain information from CCSI (issue I(h)); and

 that HMEPS has no standing under article 6243h (issue II).

To their plea, the City appellants attached: article VIII, “City Controller,” of

the City Charter; an email dated June 24, 2015, from the City attorney to trial

counsel for HMEPS regarding a spreadsheet on employees who worked for the

Convention and Entertainment Facilities Department; and the articles of

9

incorporation of Houston Convention Center Hotel Corporation.

HMEPS filed its opposition to the City appellants’ plea, arguing Klumb

made clear that the HMEPS board had the authority to define HFC, HFF, and

CCSI employees as City “employees” for purposes of membership in the fund and

therefore the City must comply with article 6243h and the TPIA with regard to

these individuals. HMEPS contended that ultra vires claims are excepted from

governmental immunity and that section 3(n) of article 6243h specifically provides

that MCAs are binding and enforceable against the City. HMEPS also emphasized

that the City appellants asserted counterclaims invoking the trial court’s

jurisdiction for their own benefit.

To its opposition, HMEPS attached: the May 2011 plea-to-the-jurisdiction

hearing from Klumb; the HMEPS 2014 actuarial valuation report; corporate

documents of the Houston Convention Center Hotel Corporation, later renamed

HFC; corporate documents of HFF; corporate documents of CCSI; the 2011

Interlocal Agreement between the City and Houston Convention Center Hotel

Corporation; and the 2011 Services Agreement between HFC and CCSI.

The trial court held a hearing on the City appellants’ plea and issued an

order denying the plea. The City appellants timely appealed. See Tex. Civ. Prac.

& Rem. Code Ann. § 51.014(a)(8) (West 2015).

II. ANALYSIS

The City appellants bring two issues. In the first issue, presented in eight

subissues, they contend that the trial court has no subject-matter jurisdiction

because all of HMEPS’s claims against the City appellants are barred by immunity.

In the second issue, the City appellants assert that the trial court has no jurisdiction

because HMEPS has no standing under article 6243h to bring this suit.

10

A. Governing law

Governmental immunity protects State agencies and political subdivisions,

as well as officers and employees acting within their official capacity, from

lawsuits for damages unless immunity has been waived. See City of El Paso v.

Heinrich, 284 S.W.3d 366, 369–70 (Tex. 2009); Reata Constr. Corp. v. City of

Dallas, 197 S.W.3d 371, 374 & n.1 (Tex. 2006); Sumner v. Bd. of Adjustment of

City of Spring Valley Vill., No. 14-15-00149-CV, 2016 WL 2935881, at *9 (Tex.

App.—Houston [14th Dist.] May 17, 2016, pet. denied) (mem. op.). Immunity

generally deprives courts of subject-matter jurisdiction. Reata, 197 S.W.3d at 374;

Sumner, 2016 WL 2935881, at *9.

Governmental immunity does not, however, bar ultra vires claims seeking to

compel a governmental officer to comply with statutory or constitutional

provisions. See Heinrich, 284 S.W.3d at 371–72. To fall within this ultra vires

exception, the party filing a suit must not complain of a government officer’s

exercise of discretion, but rather must allege, and ultimately prove, that the officer

acted without legal authority or failed to perform a purely ministerial act. See id. at

372. Such a suit, in effect, does not seek to alter government policy; it seeks to

reassert the control of and enforce existing policy of the governmental entity. Id.

at 372. Because these suits are not considered to be suits against the governmental

entity, they must be brought against the allegedly responsible government actors in

their official capacities. Id. at 373. The exception permits only prospective

declaratory or injunctive relief restraining ultra vires conduct, as opposed to

retrospective monetary relief. Id. at 374–77; Sumner, 2016 WL 2935881, at *9.

Because “immunity from suit implicates courts’ subject-matter jurisdiction,”

Rusk State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex. 2012), it “is properly asserted

in a plea to the jurisdiction,” Tex. Dep’t of Parks & Wildlife v. Miranda, 133

11

S.W.3d 217, 226 (Tex. 2004). We review a trial court’s ruling on a plea to the

jurisdiction de novo. Klumb, 458 S.W.3d at 8. When a plea to the jurisdiction

challenges the pleadings, we determine if the pleader has alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the cause. Heinrich, 284

S.W.3d at 378. In doing so, we construe the pleadings liberally in the pleader’s

favor and look to his intent. Id. Only if the pleadings affirmatively negate

jurisdiction should the plea to the jurisdiction be granted without affording the

plaintiffs an opportunity to replead. Miranda, 133 S.W.3d at 226–27. The pleader

“deserves the opportunity to amend his pleadings if the defects can be cured.” Tex.

A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

If a plea to the jurisdiction challenges the existence of jurisdictional facts,

we consider relevant evidence submitted by the parties when necessary to resolve

the jurisdictional issues. Miranda, 133 S.W.3d at 227. The movant must meet the

summary-judgment standard of proof by conclusively demonstrating that the trial

court lacks subject-matter jurisdiction. See id. at 227–28. We credit as true all

evidence favoring the nonmovant and draw all reasonable inferences and resolve

any doubts in the nonmovant’s favor. Id. at 228. If the evidence creates a fact

question regarding the jurisdictional issue, the trial court may not grant the plea,

and the fact issue will be resolved at trial by the factfinder. Id. at 227–28.

However, if relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, then the trial court rules on the plea as a matter of law. Id.

B. HMEPS’s alleged ultra vires claims related to the City’s failures to fund

contributions and make pickup payments for HFC, HFF, and CCSI

employees

We first consider the City appellants’ subissues addressing HMEPS’s ultra

vires claims related to the City’s not funding contributions or picking up payments

for HFC, HFF, and CCSI employees.

12

1. HMEPS may not bring ultra vires claims involving noncompliance

with the MCA.

In issue I(a), the City appellants contend that although HMEPS alleges the

City appellants failed to comply with the City’s contribution requirements under

article 6243h, HMEPS in fact seeks to compel the 27.36% contribution rate, which

is not specified by statute, but instead is required by the July 2011 MCA. The City

appellants argue that mandamus suits against officials are authorized only where,

unlike here, the official’s duty is “clearly fixed and required by the law.” See Oney

v. Ammerman, 458 S.W.2d 54, 54 (Tex. 1970). The City appellants likewise

contend that ultra vires suits against officials must require them “to comply with

constitutional or statutory provisions.” See Heinrich, 284 S.W.3d at 372. The City

appellants contend that Klumb “expressly rejected any notion that the [MCA] is

enforceable through anything other than contract claims”; that is, Klumb makes

clear the MCA is enforceable only through contract claims, not mandamus or ultra

vires claims. See 458 S.W.3d at 12. According to the City appellants, because

HMEPS seeks to enforce contractual duties, it failed to allege any valid mandamus

or ultra vires claims.

HMEPS responds it properly alleged that the City appellants failed to

perform purely ministerial acts mandated by article 6243h and therefore the trial

court correctly determined it has jurisdiction over this ultra vires action seeking

mandamus relief. With regard to the MCA, HMEPS argues that in section 3(n) of

article 6243h the Legislature authorized HMEPS and the City to agree to a lower

rate than otherwise calculated pursuant to section 8(d), which agreements are

“enforceable against and binding” on the City. See Tex. Rev. Civ. Stat. Ann. art.

6243h, § 3(n); Klumb, 458 S.W.3d at 7, 11. HMEPS asserts that “it only seeks

payment of the lower MCA rate to which the City agreed would be its Section 8(d)

statutory payment obligation.” HMEPS maintains Klumb only held that no waiver

13

of immunity was alleged or supported on the record before the Court as to HMEPS

for the City’s claim that HMEPS’s actions delegating employee decisions to the

External Affairs Committee violated the MCA. See 458 S.W.3d at 12.

We consider HMEPS’s first amended verified petition for writs of

mandamus to determine if HMEPS has alleged facts affirmatively demonstrating

the trial court’s jurisdiction. See Miranda, 133 S.W.3d at 226. In its petition,

within the “Statement of Facts,” HMEPS alleged:

Among the City’s statutory obligations, Article 6243h requires the

City to make periodic payments to the pension fund in an amount that

is based on the combined salaries of HMEPS’s “members.” [Tex.

Rev. Civ. Stat. Ann. art. 6243h,] § 8(d). The manner for calculating

the City’s contributions to HMEPS may be found in an Amended and

Restated Meet and Confer Agreement dated July 1, 2011 and entered

into between HMEPS and the City.

HMEPS further alleged:

Most importantly, Defendants are failing to make the statutorily

required payments of 27.36% of the payroll of the HFC, HFF, and

CCSI employees to HMEPS, as reflected in the City’s 2015-2016

Budget, and to pay the obligatory pick up contributions.

Within the “Causes of Action,” HMEPS alleged:

Article 6243h, however, requires the City to make periodic payments

to the pension fund in an amount that is based on the combined

salaries of HMEPS’s “members,” who have been judicially confirmed

to include all HFC, HFF, and CCSI employees. Tex. Rev. Civ. Stat.

Ann., art 6243b § 8(d). It also requires the City to pick up and pay

any biweekly contributions made by the contributing members of the

pension fund. Id. at § 8(a), (c). Thus, Defendants have no discretion

to exclude contributions for HFC, HFF, and CCSI employees in the

current or the future proposed City budgets or to forego their

obligation to pick up payments made on their behalf. By failing to

perform these purely ministerial acts required by Article 6243h,

Defendants are acting ultra vires.

14

[] Consequently, HMFPS seeks a writ of mandamus compelling

Defendants to allocate funding in the current City budget to provide

the statutorily required payments of 27.36% of the payroll of the HFC,

HFF, and CCSI employees, to make such payments to HMEPS in

accordance with the allocation, to include in all future proposed City

budgets the contributions owed for HFC, HFF, CCS1 employees’

salaries as members of HMEPS, and to pick up and pay any biweekly

contributions made on their behalf.

Within the “Request for Expedited Consideration,” HMEPS alleged:

This case involves straightforward application of unambiguous

ministerial statutory duties. Section 8(d) of Article 6243h

unambiguously provides that the City “shall” contribute to HMEPS an

amount that is based on the combined salaries of HMEPS’s

“members.” Section 8(c) also states that the City “shall” pay pick up

contributions made by the contributing members of the pension fund.

Section 8(c) of article 6243h provides:

The employer shall pick up the contributions required of group A

members[8] by Subsection (a)[9] of this section for all salaries earned

after the effective date of this Act. The city shall pay the pickup

contributions to the pension system from the same source of funds

that is used for paying salaries to the members. The pickup

contributions are in lieu of contributions by group A members. The

city may pick up those contributions by a deduction from each group

A member’s salary equal to the amount of the member’s contributions

picked up by the city. Members may not choose to receive the

contributed amounts directly instead of having the contributed

amounts paid by the city to the pension system. An accounting of

8

See Tex. Rev. Civ. Stat. Ann. art. 6243h, § 5(b) (describing conditions of group A

membership in pension system).

9

Tex. Rev. Civ. Stat. Ann. art. 6243h, § 8(a) (“Each group A member of the pension

system shall make monthly contributions during employment in an amount determined by the

pension board and expressed as a percentage of salary. The contributions shall be deducted by

the employer from the salary of each member and paid to the pension system for deposit in the

pension fund.”).

15

member contributions picked up by the employer shall be maintained,

and the contributions shall be treated for all other purposes as if the

amount were a part of the member’s salary and had been deducted

under this section. Contributions picked up under this subsection

shall be treated as employer contributions in determining tax

treatment of the amounts under the Internal Revenue Code of 1986, as

amended.

Tex. Rev. Civ. Stat. Ann. art. 6243h, § 8(c). Section 8(d) provides:

The city shall make periodic payments into the pension fund in an

amount equal to the percentage contribution rate multiplied by the

combined salaries of all group A and group B[10] members of the

pension fund. The contribution rate, expressed as a percentage, shall

be based on the results of actuarial valuations made at least every

three years. The city’s contribution rate shall consist of the normal

cost plus the level percentage of salary payments required to amortize

the unfunded actuarial liability over a period of 40 years from January

1, 1983, computed on the basis of an actuarial reserve funding method

approved by the pension board. Notwithstanding any other provision

of this Act, the city’s contribution rate, when added to any

contributions with respect to a qualified governmental excess benefit

arrangement maintained in accordance with Section 24 of this Act,

may not be an amount less than the greater of 10 percent of the

combined salaries of all members or two times the contribution rate of

group A members as provided in Subsection (a) of this section.

Id. § 8(d).

Where the law prescribes and defines the duty to be performed with

precision and certainty as to leave nothing to the exercise of discretion or

judgment, an act is ministerial and subject to mandamus. See State Bar of Tex. v.

Heard, 603 S.W.2d 829, 832 (Tex. 1980). The plain language in article 6243h

describing the City’s contribution actions reflects ministerial as opposed to

10

See Tex. Rev. Civ. Stat. Ann. art. 6243h, § 5(c) (describing conditions of group B

membership in pension system).

16

discretionary duties. By their usage of the term “shall,”11 sections 8(c) and 8(d)

mandate actions by the City related to paying pickup contributions to the pension

system and to making periodic payments into the pension fund at the described

contribution rate. See Tex. Rev. Civ. Stat. Ann. art. 6243h, § 8(c), (d).

Section 8(c) mandates that the City pay its pickup contributions from the

same source of funding used for paying salaries to the members. See Tex. Rev.

Civ. Stat. Ann. art. 6243h, § 8(c). Section 8(d) requires that the contribution rate

be based on actuarial valuations made at least every three years and mandates that

the rate “shall consist of the normal cost plus the level percentage of salary

payments required to amortize the unfunded actuarial liability over a period of 40

years from January 1, 1983, computed on the basis of an actuarial reserve funding

method approved by the pension board.” See id. § 8(d). Article 6243h does not

afford the City discretion or judgment to determine whether these contribution

duties exist. See Heard, 603 S.W.2d at 832. Nor does article 6243h afford the

City discretion or judgment to refuse to comply with these duties.

HMEPS alleged the Klumb Court unanimously held that “the pension board

acted within the scope of its broad statutory authority in construing the term

‘employee.’” 458 S.W.3d at 4. Although the City appellants insist the Klumb

Court did not rule that the Klumb plaintiffs were “members” of HMEPS under

article 6243h, HMEPS’s resolutions defining “employees” for purposes of the plan

were deemed final and binding. See id. at 11–12. As a result, under article 6243h,

section 1(13), unless such “employees” are no longer “active” or are otherwise

11

See Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 588 (Tex. 2015) (stating, when

construing section 49.223 of the Water Code, that “[t]he use of the word ‘shall’ evidences the

mandatory nature of the duty imposed”); Harris Cty. Appraisal Dist. v. Tex. Gas Transmission

Corp., 105 S.W.3d 88, 92 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (“The word ‘shall’

in section 22.01(a) is mandatory, not discretionary.”).

17

ineligible to become members of the system under section 4 of the statute, they

constitute “members.” See Tex. Rev. Civ. Stat. Ann. art. 6243h, § 1(13)

(“‘Member’ means each active employee included in the pension system, except

for an employee who is ineligible under Section 4 of this Act.”), § 4 (outlining

ineligible individuals). Under article 6243h, as long as these employees qualify as

either group A or group B members under section 5, see id. § 5(b), (c), the City

must meet the contribution duties outlined in sections 8(c) and 8(d) based on such

employees, see id. § 8(c), (d).

In its petition, HMEPS alleged that “[b]y failing to perform these purely

ministerial acts required by Article 6243h, [the City appellants] are acting ultra

vires.” HMEPS stated that it “seeks a writ of mandamus compelling [the City

appellants] to allocate funding in the current City budget to provide the statutorily

required payments of 27.36% of the payroll of the HFC, HFF, and CCSI

employees, to make such payments to HMEPS in accordance with the allocation,

to include in all future proposed City budgets the contributions owed for HFC,

HFF, CCIS employees’ salaries as members of HMEPS, and to pick up and pay

any biweekly contributions made on their behalf.” HMEPS alleged that the

payment in the contribution rate of 27.36% is “statutorily required” but, within the

same petition, also alleged that the manner for calculating the City’s contributions

is “found” in the MCA.

In its opposition to the City appellants’ plea to the jurisdiction, HMEPS

stated that section 8(d) provides the precise manner for calculating the actuarially

required contribution (“ARC”) rate. HMEPS also stated that the ARC rate was

27.38% but the City’s contribution rate under the MCA was 27.36%.12 HMEPS

12

This difference between the ARC rate and the MCA rate is discussed in the HMEPS

2014 actuarial valuation report attached to HMEPS’s plea opposition.

18

and the City could enter into the MCA and pursuant to its terms agree to an

alternative arrangement “regarding pension issues and benefits” such as a reduced

contribution rate that would be “enforceable against and binding on the city.” See

id. § 3(n); Klumb, 458 S.W.3d at 11. HMEPS contends this situation is analogous

to Heinrich, where the Court explained that a suit alleging an official’s ultra vires

violation of a statute requiring that government contracts be performed in a certain

way is not barred even though it necessarily involves a contract. See 284 S.W.3d

at 371. We disagree. Nothing within article 6243h “requires that government

contracts be made or performed in a certain way, leaving no room for discretion.”

See id. (discussing the rule arising out of State v. Epperson, 42 S.W.2d 228, 231

(Tex. 1931)). Section 8 does not require the making or performance of an MCA

for the City to perform its statutorily-mandated contribution duties. See Tex. Rev.

Civ. Stat. Ann. art. 6243h, § 8(c), (d). Section 3(n) does not require HMEPS to

enter into MCAs with the City or that any MCAs be performed in a particular way.

See id. § 3(n) (“[T]he pension board may enter into a written agreement . . . .”

(emphasis added)).

As the Klumb Court stated, MCAs are written contracts and, even if the

parties deem them to amend the statute, the failure to comply with such a contract

does not give rise to ultra vires claims, which is the only type of claim HMEPS has

brought with regard to the City’s alleged refusal to allocate funding and pick up

payments for the HFC, HFF, and CCSI employees. See 458 S.W.3d at 12. Just as

a claim that HMEPS failed to comply with the MCA is a breach-of-contract and

not an ultra vires claim, so too is a claim that the City failed to comply with the

MCA. See id. To the extent that HMEPS’s claims challenging the City’s

contribution failures are based on a contribution rate as found in the MCA, they

cannot be brought ultra vires.

19

The trial court ruled in HMEPS’s favor, so HMEPS had no occasion in the

trial court to ask for an opportunity to amend its pleadings to cure any defect. See

Lazarides v. Farris, 367 S.W.3d 788, 804 (Tex. App.—Houston [14th Dist.] 2012,

no pet.). In this situation, the proper course of action is to reverse the trial court’s

order as to HMEPS’s ultra vires claims related to the City’s contribution failures

and remand with instructions for the trial court to give HMEPS a reasonable

opportunity to amend its pleadings in an attempt to properly plead these claims.

See id.; Tex. Dep’t of Transp. v. Olivares, 316 S.W.3d 89, 95–96, 99 (Tex. App.—

Houston [14th Dist.] 2010, no pet.). Without expressing any opinion as to the

merits of any such claims, we reverse the trial court’s order as to these ultra

vires claims, and we remand with instructions for the trial court to provide HMEPS

a reasonable opportunity to properly plead ultra vires claims related to the City’s

contribution failures. See Lazarides, 367 S.W.3d at 804; Olivares, 316 S.W.3d at

95–96, 99.13

With this determination in mind, we consider the City appellants’ other

subissues related to the City’s alleged contribution failures.

2. HMEPS does not seek retrospective monetary relief.

In issue I(b), the City appellants contend that they are immune from

HMEPS’s mandamus claims alleging ultra vires acts under article 6243h to the

extent HMEPS seeks any relief for past periods. The City appellants argue that

13

Although within this subissue the City appellants cite the MCA as contained within the

summary-judgment record, the MCA was not attached to any of the parties’ pleadings or plea-to-

the-jurisdiction filings, nor was it incorporated as evidence within the proceedings on the City

appellants’ plea. The City appellants also cite language from HMEPS’s summary-judgment

motion. However, the trial court’s order denying the City appellants’ plea reflects that the only

item pending before the court was the City appellants’ plea and the items considered by the court

when deciding the plea were the plea, HMEPS’s opposition, the evidence, any reply, and the

arguments of counsel.

20

HMEPS’s pleadings are not clear as to whether it seeks relief for past periods,

future periods, or both. Having liberally reviewed HMEPS’s petition, we disagree

that it is seeking any prohibited retrospective monetary relief through its ultra vires

claims. In its petition, HMEPS expressly sought relief compelling the City

appellants to allocate funding in the “current” budget, to make such payments, to

include proper contributions in “future” budgets, and pick up and pay such

contributions.14 These do not constitute retrospective requests for relief. We

overrule this subissue.

3. The City appellants failed to show that HMEPS cannot prove

statutory contribution violations.

In issue I(c), the City appellants assert that HMEPS cannot prove that they

violated the contribution and pickup provisions of the statute.

With regard to section 8(c), the City appellants argue that the HFC, HFF,

and CCSI employees are employed and paid by those entities and therefore the

sources of funds used to pay their salaries are necessarily accounts of those

entities, not of the City. Having reviewed HMEPS’s pleadings, while they refer to

the individuals at issue as HFC, HFF, and CCSI employees and reference the

“payroll” of those entities, the pleadings do not indicate the City’s inability to pay

contributions from the same source of funds used to pay the members’ salaries.

See Tex. Rev. Civ. Stat. Ann. art. 6243h, § 8(c). Moreover, the evidence cited by

the City appellants—the article pertaining to payroll and employment tax reporting

in the Service Agreement between HFC and CCSI—does not conclusively

demonstrate that the City would not be able to use the same source of funds to

make pension payments as is used by HFC to advance to or reimburse CCSI for its

14

According to HMEPS’s pleading, the City’s fiscal year went through June 30, 2016.

Therefore, the relief sought by HMEPS covers the now-current fiscal year.

21

employees’ salaries.

With regard to section 8(d), essentially the City appellants contend HMEPS

cannot prove a statutory violation because the provision does not cover a certain

type of group member (group D) that only exists under the MCA. Nothing within

HMEPS’s pleadings precludes finding a violation of section 8(d) as to the HFC,

HFF, and CCSI employees. Nor does the summary of plan provisions included in

the HMEPS 2014 actuarial valuation report describing the various classes of plan

members conclusively demonstrate that all the HFC, HFF, and CCSI employees at

issue exclusively would fall outside the groups of members covered by section

8(d). We overrule this subissue.

4. Section 8 can be enforced by a mandamus suit alleging ultra vires

acts.

We already have determined that article 6243h mandates the City perform

certain contribution actions and does not provide any discretion to avoid such

duties. Contrary to the City appellants’ argument in issue I(d), we also do not

agree that the statutorily-required duties in section 8(d) are too vague and

imprecise to be enforceable by mandamus. Merely pointing out that section 8(d)

could have included additional details does not render the statute either vague or

imprecise with regard to the contribution duties it mandates on the City. A proven

violation of a contribution duty clearly imposed on the City by article 6243h can

lie in mandamus. We overrule issue I(d) with regard to ultra vires claims based on

an alleged violation of section 8(d).

5. Failing to appropriate and allocate article 6243h-mandated funding

is not discretionary.

In issue I(e), the City appellants argue that they are immune from HMEPS’s

mandamus claims under article 6243h alleging ultra vires acts regarding

22

appropriations and allocations because such acts are discretionary. We disagree.

HMEPS is not lodging a general complaint about the City’s policies and decision-

making with regard to setting its budget and allocating governmental funding.

Rather, unlike in the cases cited by the City appellants,15 HMEPS challenges the

City’s particular failures to properly allocate funding in the budget for

contributions set and required by statute. As discussed above, the City has no

discretion under the statute to refuse its duties to pick up and pay required

contributions to the fund. We overrule this subissue.

C. HMEPS’s alleged claims related to the City’s failures to provide

information for HFC, HFF, and CCSI employees

1. HMEPS may seek to compel the City to comply with the TPIA.

In issue I(g), the City appellants argue that HMEPS’s mandamus claim

against the City to compel information disclosure under section 552.321 of the

TPIA is barred by immunity because such a claim cannot be brought against the

City, but instead only against the pertinent governmental official, namely the

“officer for public information.” See Tex. Gov’t Code Ann. § 552.203 (West

2012) (outlining duties of officer for public information); id. § 552.221 (officer for

public information shall promptly produce public information and describing ways

for officer to comply); see also id. § 552.201 (West 2012) (identifying officer for

public information). The City appellants rely on A & T Consultants, Inc. v. Sharp,

904 S.W.2d 668 (Tex. 1995), and Guthrie v. Garcia, 352 S.W.3d 307 (Tex. App.—

Houston [14th Dist.] 2011, no pet.).

In A & T Consultants, Inc. v. Sharp, the Supreme Court of Texas granted

15

See, e.g., In re Perry, 60 S.W.3d 857, 860 (Tex. 2001); Kassen v. Hatley, 887 S.W.2d

4, 9–11 (Tex. 1994); Satterfield & Pontikes Constr., Inc. v. Tex. S. Univ., 472 S.W.3d 426, 436

(Tex. App.—Houston [1st Dist.] 2015, pet. denied).

23

mandamus relief under section 552.321 of the TPIA against the party the high

court concluded was the public-information officer16 for the governmental body.

See 904 S.W.2d at 672–73, 681. The Sharp Court concluded that the public-

information officer was “the proper party” against whom mandamus relief should

be sought under section 552.321. See 904 S.W.2d at 672–73, 681. The high court

noted that, although the TPIA imposes the duties to release public information on

the public-information officer, section 552.321 authorizes mandamus relief against

the governmental body. See id. at 681. Though encouraging the legislature to

resolve this incongruity, the Sharp Court stated that “[t]his discrepancy can be

overlooked in most cases, and courts can treat petitions for writ of mandamus

against governmental bodies and against public records officers interchangeably.”

Id. The Sharp Court stated that this general rule would not apply in cases in which

the exact identity of the respondent matters for purposes of jurisdiction. 17 Id. The

identity of the respondent in the case under review does not matter for purposes of

jurisdiction; therefore, under the judicial dicta in Sharp, mandamus may be sought

under section 552.321 of the TPIA against either the City of Houston or its public-

information officer. See id.

In Guthrie v. Garcia, this court concluded that, if a choice had to be made

16

Although the current version of the TPIA uses the term “officer for public information”

in place of “officer for public records,” the pertinent parts of the two versions of the TPIA are

substantially similar; each statute authorizes mandamus relief against the “governmental body”

while requiring the “officer for public records” or “officer for public information” to release the

public information. See Tex. Gov’t Code Ann. § 552.203, 552.204, 552.221, 552.321 (West

2012); Act of May 29, 1995, 74th Leg., R.S., ch. 1035, §§ 2, 14, 15, 24, 1995 Tex. Gen. Laws

5127, 5128, 5133–34, 5140. For ease of reference, we use the term “public-information officer”

to refer to the “officer for public records” under the version of the TPIA applicable in Sharp and

to refer to the “officer for public information” under the current version of the TPIA.

17

The Sharp Court addressed a jurisdictional issue as to mandamus actions against

executive officers. See Sharp, 904 S.W.2d at 672–81. That issue was resolved by subsequent

legislation. See Tex. Gov’t Code Ann. § 552.321(b).

24

between seeking mandamus relief under section 552.321 against the public-

information officer or seeking such relief against the governmental body, then the

proper choice would be to seek relief against the public-information officer, based

on the Sharp Court’s statement that the officer for public information is “the proper

party.” See 352 S.W.3d at 309–10. In Guthrie, mandamus relief was sought only

against the public-information officer, and this court noted the Sharp Court’s

statements that mandamus claims under section 552.321 against a governmental

body generally would be equivalent to mandamus claims against that body’s public

information officer. See 352 S.W.3d at 309–10. The Guthrie court did not hold or

state that mandamus claims under section 552.321 may not be asserted against a

governmental body. See id.

Under the unambiguous language of section 552.321, the Sharp judicial

dicta, and recent precedent from the Supreme Court of Texas, a requestor may file

suit against a governmental body seeking the mandamus relief provided under this

statute. See Tex. Gov’t Code Ann. § 552.321; Kallinen v. City of Houston, 462

S.W.3d 25, 27–28 (Tex. 2015) (per curiam); Sharp, 904 S.W.2d at 681.

We overrule this subissue as to HMEPS’s TPIA claim against the City of

Houston. However, in its petition HMEPS did not name just the City as a

defendant or respondent. Instead, HMEPS alleged that all the defendants’ refusal

to provide the requested employee information “constitutes violations of the TPIA”

and sought a writ of mandamus as to all the defendants under section 552.321. But

such TPIA mandamus claims only may be brought against the City or its public-

information officer. Therefore, we sustain this subissue as to HMEPS’s TPIA

claims against defendants other than the City or its public-information officer.

25

2. The City appellants failed to show that HMEPS cannot prove the

City refused to provide statutorily-required information.

In issue I(h), the City appellants contend that HMEPS’s article 6243h and

TPIA claims seeking to compel disclosure of information are barred by immunity

because the City did not refuse to provide requested information and instead

abided by the parties’ rule 11 agreement. Further, the City appellants argue that

HMEPS otherwise has adequate remedies to obtain this information from the

nonsuited HFC, HFF, and CCSI.

Both HMEPS’s petition and the plea record reflect that HMEPS twice

requested by letter information from the City regarding the name, date of birth,

social security number, address, date of hire, position at date of hire, Family

Medical Leave Act usage, status under the Uniformed Services Employment and

Reemployment Rights Act, any termination notifications, and any disability or

death claims for the HFC, HFF, and CCSI employees. HMEPS’s second request

cited both article 6243h and the TPIA. HMEPS alleged that the City appellants

refused to provide all of the requested information required by statute. HMEPS

also alleged that the City appellants did not seek an opinion from the attorney

general regarding disclosure.

Section 2(u) of article 6243h mandates that the City “shall provide full and

timely information to the pension board about employees as reasonably required by

the pension board to administer the pension fund and provide benefits properly,

including information relating to the hiring of employees, members’ service dates,

compensation of members, members’ deaths, and terminations of employment.”

Tex. Rev. Civ. Stat. Ann. art. 6243h, § 2(u).

As part of issue I(d), the City appellants contend that section 2(u) cannot be

enforced through a mandamus suit alleging ultra vires claims because it is vague,

26

imprecise, and subject to the City’s discretion. We disagree. While the HMEPS

board’s discretion is limited to requesting information that is “reasonably required”

for its administration of the fund, the duty imposed on the City to fully and timely

disclose such information is mandatory and not subject to refusal. See id.

Moreover, inclusion of the phrase “information relating to” does not render the

statute vague or imprecise, but instead illustrates the types and breadth of

information HMEPS may seek.18 See id. We overrule the remaining portion of

issue I(d).

The TPIA mandates that “[a]n officer for public information of a

governmental body shall promptly produce public information for inspection,

duplication, or both on application by any person to the officer.” See Tex. Gov’t

Code Ann. § 552.221(a). The TPIA “shall be liberally construed in favor of

granting a request for information.” Id. § 552.001(b) (West 2012); Sharp, 904

S.W.2d at 675. A governmental body wishing to withhold information that it

believes falls within one of the exceptions to disclosure must follow the steps

outlined in the TPIA regarding requesting a decision from the attorney general.

See Tex. Gov’t Code Ann. § 552.301 (West 2012). If the governmental body does

not follow these steps, then the requested information is presumed to be subject to

required disclosure. See id. § 552.302 (West 2012). “[I]f the governmental body

refuses to request an attorney general’s decision . . . or refuses to supply public

information or information that the attorney general has determined is public

information that is not excepted from disclosure,” then the requestor may seek

mandamus relief to compel such body to make the information available. Id.

18

The information about the HFC, HFF, and CCSI employees HMEPS requested

essentially tracked the examples provided in article 6243h. See Tex. Rev. Civ. Stat. Ann. art.

6243h, § 2(u) (“information relating to the hiring of employees, members’ service dates,

compensation of members, members’ deaths, and terminations of employment”).

27

§ 552.321(a).

After HMEPS filed its mandamus suit, HMEPS and the City entered into a

rule 11 agreement that states “to the extent the City of Houston possesses the

information, the City of Houston will provide the information requested in [the two

letters].” The City appellants insist that the City complied with the parties’ rule 11

agreement. However, even assuming the City’s compliance, the rule 11 agreement

expressly states that HMEPS did not waive “seeking the full relief sought in the

petition.” Therefore, HMEPS could pursue any outstanding requests and continue

its article 6243h and TPIA disclosure claims.

Next, the City appellants argue “the City has no duty to provide any

additional information that HMEPS seeks” because HMEPS already had this

information for former City employees and the City would not have this

information for HFC, HFF, and CCSI employees who were not former City

employees. But neither the TPIA nor section 2(u) of article 6243h so constrains

the City’s statutory duties. The plain language of the statutes does not prohibit

HMEPS from re-requesting information the City already may have provided or

from insisting on as complete a production as possible from the City. See Tex.

Rev. Civ. Stat. Ann. art. 6243h, § 2(u); Tex. Gov’t Code Ann. § 552.221(a).

Although the City produced evidence that it did “not have going-forward

data” on the employees at issue, we do not agree that the authorities cited by the

City appellants foreclose HMEPS’s mandamus suit under these circumstances.19

19

In Economic Opportunities Development Corp. of San Antonio v. Bustamante, 562

S.W.2d 266, 267–68 (Tex. Civ. App.—San Antonio 1978, writ dism’d), the court of appeals

affirmed the trial court’s denial of mandamus relief after a trial on the merits where the trial court

found sufficient evidence that the documents were no longer in the county commissioner’s

possession. And unlike in informal letter ruling No. OR2014-04271, the City appellants did not

request a decision from the attorney general regarding whether the City is required to disclose

HMEPS’s requested information, much less allege in such request that the City did “not possess

28

Moreover, the TPIA broadly defines public information to “include information

that is written, produced, collected, assembled, or maintained under a law or

ordinance or in connection with the transaction of official business . . . for a

governmental body and the governmental body has a right of access to the

information.” See Tex. Gov’t Code Ann. § 552.002(a); In re City of Georgetown,

53 S.W.3d 328, 331 (Tex. 2001). Evidence that the City does not have certain

information does not necessarily mean that the City has no right to access such

information.

Further, we reject the City appellants’ attempts to avoid the City’s statutory

obligations because HMEPS also had sued (but then nonsuited) HFC, HFF, and

CCSI. Section 2(u) does not state that the City has discretion to refuse to produce

“full” information because another entity may possess relevant information. See

Tex. Rev. Civ. Stat. Ann. art. 6243h, § 2(u). Nor does the TPIA require a

requestor to sue or maintain any suit against any other entity in order to bring a

mandamus action against a particular governmental body under section 552.321.

See Tex. Gov’t Code Ann. § 552.321(a).

Because the City appellants failed to conclusively establish that the trial

court lacks jurisdiction over HMEPS’s mandamus and ultra vires claims seeking

the entirety of its requested information about the HFC, HFF, and CCSI

employees, we overrule issue I(h).

any information responsive . . . to the request” like the PUC did in its request. See Op. Tex.

Att’y Gen. No. OR2014-04271 (Tex. A.G.), 2014 WL 1573637, at *1 & n.2. Moreover, the

Texas Supreme Court has indicated that, irrespective of whether a governmental body requests

and receives a decision from the attorney general on disclosure, the trial court has jurisdiction

under section 552.321(a) to consider whether the requested information is subject to disclosure.

See Kallinen, 462 S.W.3d at 28; Harris Cty. Appraisal Dist. v. Integrity Title Co., LLC, 483

S.W.3d 62, 68 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).

29

D. Remaining article 6243h issues

1. HMEPS may not allege article 6243h violations against the City.

With regard to issue I(f), we agree that HMEPS cannot bring any of its ultra

vires claims based on noncompliance with article 6243h through a mandamus

action against the City, but rather only against and to compel action by the City’s

officials. See Heinrich, 284 S.W.3d at 372–73; Anderson v. City of Four Points,

806 S.W.2d 791, 793 (Tex. 1991). HMEPS does not otherwise point to any clear

and unambiguous legislative waiver of the City’s immunity in article 6243h or

elsewhere for claims alleging a violation of article 6243h. We sustain this

subissue.20

2. HMEPS has standing to bring its suit under article 6243h.

Standing requires “a concrete injury to the plaintiff and a real controversy

between the parties that will be resolved by the court.” See Heckman v.

Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2012) (citing DaimlerChrysler Corp.

v. Inman, 252 S.W.3d 299, 304, 307 (Tex. 2008)). The issue of standing focuses

on whether a party has a sufficient relationship with the lawsuit so as to have a

“justiciable interest” in its outcome. Austin Nursing Ctr., Inc. v. Lovato, 171

S.W.3d 845, 848 (Tex. 2005). A plaintiff has standing when it is personally

aggrieved. Id.

In its second issue, the City appellants argue that HMEPS itself lacks

standing to bring this suit under article 6243h. The City appellants rely solely on

20

The City appellants also argue that the City Controller has no role or duties relating to

appropriations or allocations for current or future budgets under the City Charter. In any event,

HMEPS did not so limit its ultra vires claims. HMEPS alleged violations with regard to the

pickup and payment of the City’s mandatory contributions under article 6243h. The City Charter

indicates that the Controller has involvement in the payment of City funds.

30

section 3(g). Section 3(g) states that “[t]he pension board may institute legal

action in the name of the pension board on behalf of the pension system.” Tex.

Rev. Civ. Stat. Ann. art. 6243h, § 3(g). Section 3(g), however, does not state that

the pension system is prohibited from instituting or participating in legal action, or

otherwise impose any conditions on its being able to do so. See id.

Having reviewed HMEPS’s pleadings liberally in its favor, we conclude that

HMEPS alleged sufficient facts to affirmatively demonstrate its standing to seek

redress for the City officials’ ultra vires noncompliance with article 6243h causing

injury to HMEPS. We overrule issue II.

III. CONCLUSION

Accordingly, we reverse the trial court’s denial of the City appellants’ plea

to the jurisdiction with regard to HMEPS’s mandamus claims against the City of

Houston alleging failures to comply and seeking to compel compliance with article

6243h. We render judgment dismissing these claims.

We reverse the trial court’s denial of the plea with regard to HMEPS’s

mandamus claims against the City officials to the extent that HMEPS alleges

failures to comply with section 8 of article 6243h or the MCA and remand with

instructions for the trial court to provide HMEPS a reasonable opportunity to

properly plead ultra vires claims against the City officials.

We affirm the trial court’s denial of the plea with regard to HMEPS’s

mandamus claims against the City officials alleging ultra vires failures to comply

and seeking to compel compliance with section 2(u) of article 6243h.

We affirm the trial court’s denial of the plea with regard to HMEPS’s

mandamus claims against the City of Houston alleging failure to comply and

seeking to compel compliance with the TPIA.

31

We reverse the trial court’s denial of the plea with regard to HMEPS’s

mandamus claims alleging TPIA violations against defendants other than the City

or its public-information officer. We render judgment dismissing these claims.

/s/ Marc W. Brown

Justice

Panel consists of Chief Justice Frost, and Justices McCally and Brown.

32