Troy E. Nehls, Sheriff, and Fort Bend County, Texas v. Hartman Newspapers, LP D/B/A Fort Bend Herald and Texas Coaster

Opinion issued April 27, 2017

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-16-00121-CV

———————————

TROY E. NEHLS, SHERIFF, AND FORT BEND COUNTY, TEXAS,

Appellants

V.

HARTMAN NEWSPAPERS, LP D/B/A FORT BEND HERALD AND

TEXAS COASTER,

Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Case No. 15-DCV-225813

OPINION

Appellee Hartman Newspapers, LP d/b/a Fort Bend Herald and Texas

Coaster (“Hartman”) sued appellants Sheriff Troy E. Nehls and Fort Bend County,

Texas under the Texas Public Information Act (PIA) and the Uniform Declaratory

Judgment Act (UDJA) seeking: (1) an order compelling appellants to produce

identifying information about the individual who filed a complaint with the

sheriff’s office regarding allegations of attempted bribery made by two school

district trustees; (2) a declaratory judgment that Hartman is entitled to the

requested information; and (3) attorney’s fees. Appellants produced the requested

information and filed a plea to the jurisdiction asserting that the lawsuit was moot

and should be dismissed. The trial court denied appellants’ plea. On appeal,

appellants argue that the trial court erred in denying their plea to the jurisdiction

because: (1) Hartman’s PIA claim is moot and (2) Hartman is not entitled to

attorney’s fees. We agree, and therefore we reverse the trial court’s denial of

appellants’ plea to the jurisdiction and dismiss this case for lack of subject-matter

jurisdiction.

Background

On July 31, 2015, Scott Reese Willey, Managing Editor of the Fort Bend

Herald, sent a request for disclosure of documents and information relating to a

bribery investigation to Bob Haenel, Public Information Officer for the Fort Bend

Sheriff’s Office. Willey’s email stated in relevant part:

Under the Texas Public Information Act § 6252-17a et

seq., I am requesting an opportunity to inspect or obtain

copies of public records that detail who requested the

Fort Bend County Sheriff’s Office launch an

investigation into the allegations of attempted bribery

made by two Lamar Consolidated Independent School

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District trustees during the June 18, 2015 board meeting.

We specifically want to know who filed a complaint, if

any, which led the sheriff’s office to investigate the

allegations.

***

The Texas Public Information Act requires that you

“promptly produce” the requested records unless, within

10 days, you have sought an Attorney General’s Opinion.

In a letter to Willey dated Thursday, August 13, 2015, Assistant County

Attorney Matthew L. Grove asserted the requested records were “not subject to

public disclosure because they contain information believed to be confidential

and/or privileged by law.” Grove wrote that Willey’s request had been forwarded

to the Texas Attorney General’s Office for a determination as to whether the

information must be released. On the same day, Grove also wrote Attorney

General Paxton, asking whether certain records should be produced in response to

Willey’s request. Grove took the position that Section 552.108 of the Government

Code applied, excepting the requested documents from disclosure. Section

552.108 of the Government Code provides:

(a) [i]nformation held by a law enforcement agency or

prosecutor that deals with the detection, investigation, or

prosecution of crime is excepted from the requirements

of Section 552.021 if: (1) release of the information

would interfere with the detection, investigation or

prosecution of crime; . . .

(b) an internal record or notation of a law enforcement

agency or prosecutor that is maintained for internal use in

matters relating to law enforcement or prosecution is

excepted from the requirements of section 552.021 if: (1)

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the release of the internal record or notation would

interfere with law enforcement or prosecution[.]

TEX. GOV’T CODE § 552.108.

Eight days later, before the Attorney General’s office responded to Grove’s

letter, Hartman sued appellants seeking a writ of mandamus, declaratory relief, and

a mandatory injunction under the PIA and UDJA. In its petition, Hartman stated

that it sought to learn the identity of the individual who filed a complaint which led

the sheriff’s office to investigate the allegations of attempted bribery made by two

Lamar Consolidated Independent School District trustees during the June 18, 2015

board meeting. In response, appellants emailed Hartman the first page of Offense

Report 25-23901, which provided basic information related to the report of

attempted bribery, including the names of the individuals who met with the

sheriff’s office.

In October 2015, Assistant Attorney General Cristian Rosas-Grillet

responded to Grove’s letter. Rosas-Grillet concluded that “the release of the

information at issue would interfere with the detection, investigation, or

prosecution of crime . . . . [t]hus, with the exception of basic information, which

must be released, the sheriff’s office may withhold the submitted information

under section 552.108(a)(1) of the Government Code.”

In January 2016, appellants filed a plea to the jurisdiction asserting that they

had satisfied Hartman’s request for information and thus mooted the case.

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Appellants argued that Hartman (1) did not “substantially prevail” because the

controversy was moot and thus, Hartman was not entitled to attorney’s fees under

the PIA and (2) was not entitled to costs of litigation or attorney’s fees under the

UDJA because its UDJA claim was merely incidental to Hartman’s claim for relief

under the PIA.

At the hearing on appellants’ plea to the jurisdiction, Hartman presented two

witnesses: Fred Hartman, the vice chairman of the board of Hartman Newspapers,

and Bill Hartman, the chairman of Hartman Newspapers. Both acknowledged that

Hartman had received the information that was the subject of the PIA request, but

contended that the information should have been disclosed without the need for a

decision from the Attorney General. Bill Hartman testified that, though Hartman

had never filed suit before, Hartman had problems obtaining information from the

sheriff’s office from time to time over the years. He testified that he was

concerned that the county would repeatedly delay disclosing information in the

future.

After the trial court denied their plea, Fort Bend County and Sheriff Nehls

appealed.

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Plea to the Jurisdiction

In their sole issue, appellants contend that the trial court erred in denying

their plea to the jurisdiction because (1) Hartman’s PIA claim is moot and

(2) Hartman is not entitled to attorney’s fees under the PIA or the UDJA.

A. Standard of Review

A plea to the jurisdiction challenges the trial court’s subject-matter

jurisdiction to hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000); Harris Cty. Appraisal Dist. v. Integrity Title Co., 483 S.W.3d 62, 65

(Tex. App.—Houston [1st Dist.] 2015, pet. denied). The existence of subject-

matter jurisdiction is a question of law that we review de novo. State Dep’t of

Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Harris

Cty., 483 S.W.3d at 65. When 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 raised,’ even where those facts may

implicate the merits of the cause of action.” City of Waco v. Kirwan, 298 S.W.3d

618, 622 (Tex. 2009) (quoting Tex. Dep’t & Wildlife v. Miranda, 133 S.W.3d 217,

227 (Tex. 2004)). If the evidence creates a fact question regarding jurisdiction, the

trial court cannot grant the plea to the jurisdiction, and the fact issue will be

resolved by the fact-finder; however, 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

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a matter of law. Miranda, 133 S.W.3d at 228; Kamel v. Univ. of Tex. Health Sci.

Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

B. Applicable Law

1. Mootness Doctrine

“The mootness doctrine limits courts to deciding cases in which an actual

controversy exists.” Hous. Chronicle Publ’g Co. v. Thomas, 196 S.W.3d 396, 399

(Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting F.D.I.C. v. Nueces Cty.,

886 S.W.2d 766, 767 (Tex. 1994)). “To constitute a justiciable controversy, there

must exist a real and substantial controversy involving genuine conflict of tangible

interests and not merely a theoretical dispute.” Bonham State Bank v. Beadle, 907

S.W.2d 465, 467 (Tex. 1995); Kessling v. Friendswood Indep. School Dist., 302

S.W.3d 373, 380 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). “If a

controversy ceases to exist—‘the issues presented are no longer “live” or the

parties lack a legally cognizable interest in the outcome’—the case becomes

moot.” Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (quoting Murphy v.

Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183 (1982)). If a case becomes moot,

the court loses jurisdiction over the claims. Id.

The Texas Supreme court has recognized two exceptions to

the mootness doctrine: (1) the capability of repetition yet evading review exception

and (2) the collateral consequences exception. General Land Office of State of Tex.

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v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990). “Capable of repetition yet

evading review” is a rare exception to the mootness doctrine. Tex. A & M Univ.-

Kingsville v. Yarbrough, 347 S.W.3d 289, 290 (Tex. 2011) (citing Williams, 52

S.W.3d at 184). To invoke this exception, a party must establish both (1) that the

challenged act is of such short duration that the issue becomes moot before review

may be obtained, and (2) that a reasonable expectation exists that the same

complaining party will be subjected to the same action again. Williams, 52 S.W.3d

at 184–85; OXY U.S.A., 789 S.W.2d at 571.

2. Public Information Act

Under the PIA, upon a request for public information, a governmental

body’s officer for public records must promptly produce public information for

inspection, duplication, or both. See TEX. GOV’T CODE § 552.221. Public

information is any information which, under a law or ordinance or in connection

with the transaction of official business, is collected, assembled or maintained by a

governmental body; or for a governmental body and the governmental body owns

the information or has a right of access to it. TEX. GOV’T CODE § 552.002; City of

Garland v. Dall. Morning News, 22 S.W.3d 351, 356 (Tex. 2000).

If a governmental body receives a written request for information that it

wishes to withhold from public disclosure and believes is excepted from disclosure

under the PIA, within ten days of receipt of the written request, the governmental

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body must ask for a decision from the attorney general about whether the

information may be withheld. See TEX. GOV’T CODE § 552.301(a). “Unless the

information requested is confidential by law, the governmental body may disclose

the requested information to the public or to the requestor before the attorney

general makes a final determination that the requested information is public or, if

suit is filed under this chapter, before a final determination that the requested

information is public has been made by the court with jurisdiction over the suit.”

TEX. GOV’T CODE § 552.303(a).

Section 552.321 of the PIA waives sovereign immunity and allows a

requestor to file suit for a writ of mandamus compelling a governmental body to

make information available for public inspection if the governmental body refuses

to 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. TEX. GOV’T CODE § 552.321(a). However, “the

legislature has not addressed or provided a waiver of sovereign immunity as to a

claim that is based on a governmental body’s delay or its motives for delaying the

release of information that is subject to disclosure under the PIA.” Gates v. Texas

Dep’t of Family and Protective Servs., No. 03-15-00631-CV, 2016 WL 3521888,

at *4 (Tex. App.—Austin June 23, 2016, pet. denied) (mem. op.).

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In an action brought under the PIA, “the court shall assess costs of litigation

and reasonable attorney fees incurred by a plaintiff who substantially prevails.”

TEX. GOV’T CODE § 552.323(a). The Texas Supreme Court has held that to qualify

as a “prevailing party,” a plaintiff must obtain (1) judicially sanctioned relief on

the merits of its claim that (2) materially alters the legal relationship between the

parties such as a damages award, injunctive or declaratory relief, or consent decree

or settlement in the party’s favor. Intercont’l Grp. P’ship v. KB Home Lone Star

L.P., 295 S.W.3d 650, 653–55 (Tex. 2009). Several courts of appeals in Texas

have held that a requestor whose PIA claim is rendered moot by the voluntary

production of documents by a governmental body does not “substantially prevail”

under the PIA. See Gates, 2016 WL 3521888, at *7–8; Hudson v. Paxton, No. 03-

13-00368-CV, 2015 WL 739605, at *3–5 (Tex. App.—Austin Feb. 20, 2015, pet.

denied) (mem. op.); Brazee v. City of Spur, No. 07-12-00405-CV, 2014 WL

2810339, at *3 (Tex. App.—Amarillo June 10, 2014, no pet.) (mem. op.); Tex.

State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696, 703–06

(Tex. App.—Austin 2013, no pet.); Dall. Morning News, Inc. v. City of Arlington,

No. 03-10-00192-CV, 2011 WL 182886, at *3–4 (Tex. App.—Austin Jan. 21,

2011, no pet.) (mem. op.); City of Dall. v. The Dall. Morning News, L.P., 281

S.W.3d 708, 718 (Tex. App.—Dallas 2009, no pet.).

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3. Uniform Declaratory Judgment Act

“There are two prerequisites for a declaratory judgment action: (1) there

must be a real controversy between the parties and (2) the controversy must be one

that will actually be determined by the judicial declaration sought.” Thomas, 196

S.W.3d at 401 (citing Brooks v. Northglen Ass’n, 141 S.W.3d 158, 163–64 (Tex.

2004)). A request for declaratory judgment is moot “if the claim presents no live

controversy.” Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 624 (Tex. 2011) (per

curiam) (quoting Yarborough, 347 S.W.3d at 290). “A controversy ceases to exist

when the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Bd. of Tr. of Galveston Wharves v. O’Rourke,

405 S.W.3d 228, 236 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing

Williams, 52 S.W.3d at 184). If a case becomes moot, the plaintiff loses standing

to maintain his claims. Id. at 236–37 (citing Williams, 52 S.W.3d at 184).

“[T]he Declaratory Judgment Act does not empower a court to render an

advisory opinion or to rule on a hypothetical fact situation.” Thomas, 196 S.W.3d

at 401 (citing Brooks, 141 S.W.3d at 164). “An advisory opinion is one which

does not constitute specific relief to a litigant or affect legal relations.” Id. (quoting

Lede v. Aycock, 630 S.W.2d 669, 671 (Tex. App.—Houston [14th Dist.] 1981, writ

ref’d n.r.e.)).

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C. Analysis

Appellants contend that the trial court erred in denying their plea to the

jurisdiction with regard to Hartman’s PIA claim because this claim and the related

claim for attorney’s fees were rendered moot as a result of appellants’ production

of the requested information. Hartman admits that appellants provided Hartman

with the information it requested six days after it filed suit. And the Attorney

General later concluded that Hartman was not entitled to receive the information

that the sheriff had not provided. Thus, appellants’ release of information

eliminated the justiciable controversy that formed the basis of Hartman’s PIA

claim. Gates, 2016 WL 3521888, at *5 (concluding PIA claim moot by

Department’s release of requested information); Giggleman, 408 S.W.3d at 704–06

(holding plaintiff’s PIA claim mooted by Board’s production of requested

information); Dall. Morning News, Inc., 2011 WL 182886, at *3–4 (holding PIA

controversy moot where City voluntarily released requested document).

Hartman does not dispute that the sheriff’s production of information

mooted its substantive request for relief, but it does assert that the production of

information did not moot its request for attorney’s fees under the PIA. Hartman

argues it is entitled to a fee award and, accordingly, a “live” controversy remains.

In the alternative, Hartman asserts that the “capable of repetition yet evading

review” exception to the mootness doctrine applies. Finally, Hartman contends

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that even if the production of documents mooted its PIA claim, its UDJA claim

survives and may serve as a basis for a fee award. We address each of these

arguments in turn.

1. Attorney’s Fees Under the PIA

Appellants argue that Hartman’s claim for attorney’s fees under the PIA was

mooted by appellants’ voluntary production of the requested documents. Hartman

argues its claim for fees is not moot because there is a “live” issue regarding

whether it “substantially prevailed.”

Hartman concedes that both the Austin and Dallas courts of appeals have

held that a plaintiff does not “substantially prevail” under the PIA when a

governmental body voluntarily releases information and the record does not reflect

an enforceable judgment or a consent decree or settlement. See Gates, 2016 WL

3521888, at *7–8 (plaintiff did not “substantially prevail” under PIA where record

did not reflect an enforceable judgment against defendant, a consent decree, or

settlement and defendant voluntarily released information sought); Hudson, 2015

WL 739605, at *3–4 (noting that to “substantially prevail” under PIA, party must,

at a minimum, “prevail” as that term is defined by the Supreme Court in KB

Home); Giggleman, 408 S.W.3d at 705 (holding that it became impossible for

plaintiff to satisfy PIA’s “substantially prevail” requirement once his mandamus

claim was mooted by Board’s production of requested information); Dall. Morning

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News, Inc., 2011 WL 182886, at *3 (holding plaintiff did not “substantially

prevail” where City voluntarily released requested document); City of Dall., 281

S.W.3d at 718 (holding that there was no prevailing or substantially prevailing

party where there was no final judgment); see also Brazee, 2014 WL 2810339, at

*3 (holding requestor does not substantially prevail under PIA where claim

rendered moot by voluntary action of governmental body prior to entry of final

judgment). However, Hartman urges us to reject these courts’ analysis, asserting

that it is “fundamentally flawed.”

Instead, Hartman urges us to adopt the “catalyst theory” relied upon by some

federal courts to determine whether attorney’s fees are warranted. In support,

Hartman relies on federal cases interpreting the phrase “substantially prevailed” in

the context of the federal Freedom of Information Act (“FOIA”). Generally, these

cases from the 1970s and 1980s held that a plaintiff “substantially prevailed” for

the purpose of awarding attorney’s fees under FOIA where the plaintiff’s lawsuit

was the catalyst to the government’s disclosure of requested information.

Federal courts previously recognized the catalyst theory as a viable theory of

recovery of attorney’s fees under the FOIA. See e.g., Miller v. U.S. Dep’t of State,

779 F.2d 1378, 1389 (8th Cir. 1985); Church of Scientology of Cal. v. U.S. Postal

Serv., 700 F.2d 486, 489–92 (9th Cir. 1983); Clarkson v. Internal Revenue Serv.,

678 F.2d 1368, 1371 (11th Cir. 1982); Cazaleas v. U.S. Dept. of Justice, 660 F.2d

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612, 622 (5th Cir. 1981). The catalyst theory posits that, to qualify as prevailing

for the purpose of an attorney’s fees award, a party must “show (1) that the relief

sought by the plaintiff was in fact obtained, and (2) that the suit itself caused the

defendant to alter its conduct.’” Envtl. Conservation Org. v. City of Dall., 307 Fed.

Appx. 781, 785 (5th Cir. 2008) (quoting Foreman v. Dall. Cty., 193 F.3d 314, 320

(5th Cir. 1999)). But the Supreme Court unequivocally rejected the application of

the “catalyst theory” in Buckhannon Board and Care Home, Inc. v. West Virginia

Department of Health and Human Resources. 532 U.S. 598, 605–08, 621 S. Ct.

1835, 1841–42 (2001).

In Buckhannon, the petitioners argued that they were entitled to attorney’s

fees as “prevailing parties” after the underlying controversy in the case was

mooted. Id. at 601–602. The Court rejected the petitioners’ argument that a

plaintiff is a “prevailing party” if it achieves the desired result because the lawsuit

brought about a voluntary change in the defendant’s conduct. Id. at 605–08.

Specifically, the Supreme Court held that its precedents “counsel[ed] against

holding that the term ‘prevailing party’ authorizes an award of attorney’s fees

without a corresponding alteration in the legal relationship of the parties.” Id at

605; see also Oil, Chem. & Atomic Workers Int’l Union AFL-CIO v. Dep’t of

Energy, 288 F.3d 452, 454–57 (D.C. Cir. 2002) (confirming that Buckhannon

applied to FOIA cases and that to be eligible for attorneys’ fee award, party must

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have been “awarded some relief by [a] court,” either in judgment on merits or in

court-ordered consent decree). The Fifth Circuit has declined to apply the “catalyst

theory” as a basis for an award of attorney’s fees, holding instead that where the

plaintiff obtained no court-ordered relief modifying the defendant’s behavior, it

was not a “substantially prevailing party.” Envtl. Conservation Org., 307 Fed.

Appx. at 784. Several Texas courts have similarly rejected the application of the

“catalyst theory” when deciding whether a party has “substantially prevailed”

under the PIA, instead applying the two-part “prevailing party” test articulated in

KB Home. See Hudson, 2015 WL 739605, at *3–4; Brazee, 2014 WL 2810339, at

*3; Giggleman, 408 S.W.3d at 703–06; Dall. Morning News, 2011 WL 182886, at

*3–4.

In support of Hartman’s contentions, an amicus in this case argues that this

Court reached a different conclusion in City of Houston v. Kallinen, — S.W.3d —,

No. 01-12-00050-CV, 2017 WL 769904 (Tex. App.—Houston [1st Dist.] Feb. 28.

2017, no pet.) (op. on reh’g). Although the Kallinen panel concluded that the

plaintiff in that case did substantially prevail, Kallinen is distinguishable on its

facts. Id. at *1. In that case, Kallinen requested disclosure of information

regarding a traffic-light camera study. Id. The City granted part of the request, but

withheld other documents while it sought the Attorney General’s opinion about

whether they were subject to disclosure. Id. Before the Attorney General ruled,

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the plaintiff sued for mandamus relief. Id. The City filed a plea to the jurisdiction,

contending that the trial court lacked jurisdiction until the Attorney General ruled.

Id. The trial court overruled the City’s plea, granted the plaintiff’s motion for

summary judgment, ordered disclosure of many of the withheld documents, and

awarded the plaintiff attorney’s fees. Id. The City disclosed the information in

accordance with the trial court’s order but appealed the fee award. Id.

This Court reversed, holding that the trial court lacked jurisdiction to

consider the plaintiff’s claim before the Attorney General rendered a decision. Id.

The Supreme Court, in turn, reversed and remanded. Id. On remand, the City

contended for the first time that the case was moot because the City voluntarily

provided the requested documents before the trial court signed its final judgment.

Id. at *2. Our Court concluded that, although the City argued otherwise, the record

showed that the City’s production came only after it was ordered by the trial court.

Id. at *2–3 (distinguishing Giggleman and noting that final judgment in Giggleman

did not compel disclosure of requested information). Our Court noted that the trial

court’s amended final judgment expressly ruled that the documents withheld by the

City were public information, compelled their disclosure, and declared Kallinen a

“prevailing party” under the statute. Id. at *3.

Unlike in Kallinen, here, the trial court did not order disclosure of

documents. Rather, appellants voluntarily produced the requested information six

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days after Hartman filed suit, rendering Hartman’s PIA claim moot. Because

Hartman did not receive judicially sanctioned relief on the merits as required under

KB Home and as the Kallinen plaintiff did, it did not substantially prevail so as to

recover attorney’s fees. See Giggleman, 408 S.W.3d at 703–06; Dall. Morning

News, Inc., 2011 WL 182886, at *3–4. Accordingly, there is no “live” issue

regarding whether Hartman is entitled to attorney’s fees under the PIA. See

Hudson, 2015 WL 739605, at *3–5 (concluding that trial court correctly ruled

plaintiff was not entitled to award of attorney’s fees because he did not

“substantially prevail” where production of documents rendered controversy

moot); Brazee, 2014 WL 2810339, at *3 (plaintiff did not “substantially prevail”

because her PIA claim was rendered moot before entry of final judgment, thereby

rendering her related attorney’s fees claim moot). Because appellants’ disclosure

rendered Hartman’s PIA claim and its related attorney’s fees claim moot, the trial

court erred in denying appellants’ plea to the jurisdiction with regard to Hartman’s

PIA claim unless an exception to the mootness doctrine applies. See Gates, 2016

WL 3521888, at *4–8 (affirming grant of plea to jurisdiction where party’s UDJA

and PIA claims were moot); Giggleman, 408 S.W.3d at 704–09 (dismissing

plaintiff’s claims for attorney’s fees under UDJA and PIA for want of subject-

matter jurisdiction after production of documents rendered controversy moot).

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2. Capable of Repetition Yet Evading Review Exception to Mootness

Doctrine

Hartman contends that this case falls within the “capable of repetition yet

evading review” exception to the mootness doctrine. In support of this contention,

Hartman cites Click v. Tyra, an original mandamus proceeding arising from the

appeal of an asbestos case that was tried before a jury. 867 S.W.2d 406, 407 (Tex.

App.—Houston [14th Dist.] 1993, orig. proceeding). In Click, the relators timely

perfected their appeal by filing a cash deposit of one-thousand dollars in lieu of an

appeal bond. Id. They also filed a designation of transcript with the District

Clerk’s office. Id. The District Clerk subsequently told the relators they would

have to pay $150 for the transcript to be prepared. Id. The relators protested that

their cash deposit covered such fees and filed a writ of mandamus to compel the

District Clerk to prepare the transcript. Id. During the pendency of the mandamus

proceeding, the District Clerk filed the transcript and argued that the mandamus

proceeding was moot. Id. at 408. The Court of Appeals noted that it had to

address the issue rather than treat it as moot because it had received several

Amicus Curiae briefs advising the court that the issue presented was a recurring

problem and the briefs filed by the District Clerk reflected a continuing belief that

she was acting with clear legal authority. Id. at 408–09. The Click court held that

the “capable of repetition yet evading review” exception to the mootness doctrine

applied because the complained–of act was a recurring practice of such a short

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duration that an appellant could not obtain review before the issue became moot

and the briefs of the District Clerk reflected that she would not willingly change

her course of conduct. Id. at 409.

Unlike the relators in Click, Hartman has offered no evidence or support for

the notion that appellants have a policy or practice of routinely withholding

discoverable public information such that it is a “recurring problem.” Hartman’s

bare contention that there is a possibility of a future violation by appellants does

not establish that a reasonable expectation exists that Hartman will be subjected to

the same action again.1 See, e.g., Thomas, 196 S.W.3d at 403 (holding that there

was no live controversy or evidence to support a public interest exception to the

mootness doctrine where there was no evidence that the defendant had a “de facto

policy of stonewalling the press” or that the act was of a “recurrent character”).

Thus, this case does not fall under the “capable of repetition yet evading review”

exception to the mootness doctrine.

1

Hartman also cites Newport Aeronautical Sales v. Dept. of Air Force in support of

its argument regarding the application of the “capable of repetition yet evading

review” exception to the mootness doctrine. 684 F.3d 160, 162–64 (D.C. Cir.

2012). But the Newport court determined that the government had a policy or

practice that would impair a requestor’s access to public information in the future

and that there was evidence that the plaintiff would continue to suffer injury in the

future because the challenged policy permitted the Air Force to withhold

documents that the plaintiff continually requested. Id. Hartman, by contrast, fails

to present any evidence that Sheriff Nehls or Fort Bend County have a policy or

practice of withholding the type of information that was the subject of Hartman’s

PIA request or that there is a reasonable expectation Hartman will be subjected to

the same action in the future. Thus, Newport is also inapposite.

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3. UDJA

Our determination that Hartman’s PIA claim is moot leaves the UDJA as the

only remaining basis on which Hartman could be entitled to attorney’s fees.

Appellants contend that Hartman’s UDJA claim is moot and Hartman is not

entitled to attorney’s fees under the UDJA because this claim is merely incidental

to its PIA claim. We agree.

The evidence demonstrates, and Hartman concedes, that the substantive

issue giving rise to the lawsuit has been resolved—specifically, Hartman has

received the information it sought under the PIA. Thus, there is no need to enter a

declaratory judgment to the effect that Hartman is entitled to the requested

information. No justiciable controversy would be resolved by such a declaration.

See Gates, 2016 WL 3521888, at *6; Thomas, 196 S.W.3d at 401. Hartman is not

entitled to attorney’s fees under the UDJA because its claim for declaratory relief

is merely incidental to, i.e., it seeks the same relief as, its central theory of relief

arising under the PIA.2 See Jackson v. State Office of Admin. Hearings, 351

2

Appellants also contend that Hartman’s UDJA claim is barred because Hartman

does not seek a declaration that comes within the UDJA’s limited waiver of

immunity. “In Texas, sovereign immunity deprives a trial court of subject matter

jurisdiction for lawsuits in which the state or certain governmental units have been

sued unless the state consents to suit.” Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 224 (Tex. 2004). Given our conclusion that the trial court lacks

subject-matter jurisdiction over Hartman’s UDJA claim because there is no “live”

controversy, we need not address whether this claim is also barred by sovereign

immunity.

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S.W.3d 290, 3001 (Tex. 2011) (“[A]n award of attorney’s fees under the [UDJA] is

unavailable if the claim for declaratory relief is merely incidental to other claims

for relief.”); Gates, 2016 WL 3521888, at *7 (quoting Jackson, 351 S.W.3d at

301).

Conclusion

Hartman’s claims under the PIA and UDJA are moot. Accordingly, we

sustain appellants’ sole issue. We reverse the trial court’s order denying

appellants’ plea to the jurisdiction, and render judgment granting Sheriff Nehls’s

and Fort Bend County’s plea to the jurisdiction and dismissing the case with

prejudice for lack of subject-matter jurisdiction.

Rebeca Huddle

Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.

Publish. TEX. R. APP. PROC. 47.2(b).

22