# Michael Fallon, M.D. v. the University of Texas MD Anderson Physician's Network Ans William Hyslop, as President and Chief Executive Officer of the University of Texas MD Anderson Physician's Network

> Texas Court of Appeals, 1st District (Houston) · August 27, 2019

URL: https://www.frixlaw.com/law-library/cases/4433892

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** August 27, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Opinion issued August 27, 2019

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-17-00882-CV
———————————
MICHAEL FALLON, M.D., Appellant
V.
MD ANDERSON PHYSICIANS NETWORK AND MICHAEL W. BROWN,
AS PRESIDENT AND CHIEF EXECUTIVE OFFICER OF MD
ANDERSON PHYSICIANS NETWORK, Appellees

On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2017-36113

OPINION

Appellant, Michael Fallon, M.D., challenges the trial court’s rendition of

summary judgment in favor of appellees, MD Anderson Physicians Network and

Michael W. Brown, as President and Chief Executive Officer of MD Anderson
Physicians Network (collectively, “Physicians Network”), in Fallon’s suit for a writ

of mandamus and a declaratory judgment.1 In five issues, Fallon contends that the

trial court erred in granting the Physicians Network summary judgment and denying

him summary judgment.

We affirm.

Background

In his first amended petition, Fallon alleges that he is an individual residing in

New York and the Physicians Network is a “governmental body” of the State of

Texas. Fallon also alleges that the Physicians Network is a subsidiary of The

University of Texas MD Anderson Cancer Center (the “Cancer Center”) and the

Physicians Network maintains communications with the Cancer Center.

Previously, Fallon, pursuant to the Texas Public Information Act (“PIA”), 2

served the Cancer Center with a public information request, seeking nine categories

of information, including certain “electronic communications.” It is undisputed that

the Cancer Center is a “governmental body” under the PIA.3 Although the Cancer

Center produced some information responsive to Fallon’s request, it also informed

1
See TEX. GOV’T CODE ANN. § 552.321 (“Suit for Writ of Mandamus”); TEX. CIV.
PRAC. & REM. CODE ANN. §§ 37.001–.011 (“Uniform Declaratory Judgments Act”
(the “DJA”)).
2
See TEX. GOV’T CODE ANN. §§ 552.001–.353.
3
See id. § 552.003(1).

2
him that “certain electronic communications from September 2013 to [the]

present . . . were maintained by a . . . non-governmental body,” i.e., the Physicians

Network.

On July 11, 2016, Fallon, pursuant to the PIA, served the Physicians Network

with a public information request, seeking eleven categories of information:

1) All documents, including but not limited to emails, faxes, letters,
text messages, instant messenger messages, other electronic
records, handwritten notes, typewritten notes, and other records
that are regarding, or that name or allude to, in any way, Dr.
Michael Fallon.

2) All documents . . . that are regarding, in any way, the MD
Anderson Certified Member program involving Our Lady of
Lourdes Memorial Hospital of Binghamton, New York, or its
affiliates.

3) All documents, . . . from September 1, 2013, to the present, that
name, concern, or allude to, in any way, any of the [twelve listed]
individuals[.]

4) The MD Anderson PN “Radiation Oncology Provider Quality
Assessment – Provisional” reports for the Radiation Oncologists
certified by MD Anderson at the [fourteen listed] institutions
with patient, physician, and institution identifiers redacted. The
information requested pertains to the [forty-three] radiation
oncologists listed on the MD Anderson website.

5) All documents . . . that show the dollar amount of gross revenue
received by MD Anderson Physicians Network from the
[fourteen listed] institutions . . . .

6) All documents . . . that show the minutes, transcripts, notes, or
recordings of the University of Texas MD Anderson Cancer
Center and MD Anderson Physicians Network Board meetings

3
from September 1, 2013 to January 31, 2016, with all patient
identifiers redacted.

7) All documents . . . that show any agreements or engagements
that name or allude to, in any way, the [seven listed]
consultants[.]

8) All documents . . . that show the dollar amount of fees paid by
MD Anderson Physicians Network to the [seven listed]
consultants . . . .

9) All documents . . . that show the affiliation and discovery or due
diligence agreement between MD Anderson Physicians Network
and Our Lady of Lourdes Memorial Hospital of Binghamton,
NY, or its affiliates.

10) All documents . . . that show the name of the officer for public
information of MD Anderson Physicians Network between
January 1, 2015 and today. If only one person served as the
officer for public information of MD Anderson PN during that
period, one document showing the name of that person would
suffice.

11) All documents . . . that are regarding, or that name or allude to,
in any way, [a listed individual].

After the Physicians Network sought clarification of Fallon’s public information

request, Fallon “clarified his request[] as to time and specified parties.” And the

Physicians Network sought an opinion from the Attorney General as to whether it

constituted a “governmental body” under the PIA, whether it was subject to the

PIA’s disclosure requirements, and whether certain exceptions to disclosure

applied.4 The Attorney General issued an open records letter ruling, concluding that

4
See id. §§ 552.301–.309 (“Attorney General Decisions”).

4
the Physicians Network is not a “governmental body” and not subject to the PIA or

its disclosure requirements.5 (Internal quotations omitted.)

According to Fallon, despite the Attorney General’s conclusion, the

Physicians Network is a “governmental body” and subject to the PIA. Further, the

information responsive to Fallon’s request is in the possession of the Physicians

Network and constitutes “public information.” Thus, Fallon seeks a writ of

mandamus to compel the Physicians Network to produce the information responsive

to his request.6 Fallon also seeks declarations that the Physicians Network is a

“governmental body” subject to the PIA, the Physicians Network is the functional

equivalent of a “governmental body” subject to the PIA, the Physicians Network is

agent of a “governmental body” subject to the PIA, and the Physicians Network must

disclose the information requested by Fallon.7

The Physicians Network answered, generally denying Fallon’s allegations and

asserting certain affirmative defenses.

Fallon then filed a combined no-evidence and matter-of-law

summary-judgment motion, arguing that the Physicians Network is a “governmental

body” under the PIA because it was “created by the executive or legislative branch

5
See Tex. Att’y Gen. OR2016-22964.
6
See TEX. GOV’T CODE ANN. § 552.321 (“Suit for Writ of Mandamus”).
7
TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011.

5
of state government” and is “directed by one or more elected or appointed

members”;8 the Physicians Network is the functional equivalent of a “governmental

body” because it is supported by public funds;9 the Physicians Network “must make

all public information in its possession available to . . . Fallon[] regardless of its

status as a governmental body” because Fallon seeks “public information” owned

by and accessible to the Cancer Center; and the Physicians Network presents no

evidence of any applicable exceptions to disclosure under the PIA. 10 (Internal

quotations omitted.) Fallon attached exhibits to his motion.

The Physicians Network filed a response and a cross-motion for a

matter-of-law summary judgment, asserting that it did not constitute a

“governmental body” under the PIA as a matter of law because it is not “created

by . . . the executive or legislative branch [of state government],” is not “directed by

elected or appointed members,” and is not “supported, in whole or in part, by public

funds”;11 Fallon’s “functional equivalent argument[]” is misplaced and not “the

correct legal test” for determining whether an entity is subject to the PIA; and

Fallon’s no-evidence summary-judgment motion was premature and there is more

than a scintilla of evidence that the exceptions asserted by the Physicians Network

8
See TEX. GOV’T CODE ANN. § 552.003(1)(A)(i).
9
See id. § 552.003(1)(A)(xii).
10
See id. §§ 552.101–.158 (“Information Excepted from Required Disclosure”).
11
See id. § 552.003(1)(A)(i), (xii).

6
apply.12 The Physicians Network attached exhibits to its response and cross-motion.

And in connection with its cross-motion for summary judgment, the Physicians

Network moved to file four summary-judgment exhibits in camera with the trial

court pursuant to the PIA.13

In reply to the Physicians Network’s response, Fallon asserted that the

Physicians Network constitutes a “governmental body” “because it [is] unable to

perform its services without governmental funding and acts as the functional

equivalent” of a “governmental body”; the Physician’s Network must disclose the

requested “public information” regardless of its status as a “governmental body”;

and there is no evidence to support the Physician Network’s “claimed exceptions”

to disclosure.

In response to the Physicians Network’s cross-motion for summary judgment,

Fallon argued that the Physicians Network constitutes a “governmental body”

because it was “created by the [e]xecutive branch[] with [t]rustees appointed by the

[e]xecutive [b]ranch.”14 Fallon further argued that the Physicians Network was the

“functional equivalent” of a “governmental body” because it is supported by public

funds, it is fully controlled by the government for the government’s purposes, and

12
See id. §§ 552.101–.159.
13
See id. § 552.3221 (“In Camera Inspection of Information”).
14
See id. § 552.003(1)(A)(i).

7
the Cancer Center, a governmental entity, is not merely a client of the Physicians

Network.15 Moreover, Fallon asserted that, regardless of the Physicians Network’s

status as a “governmental body” it was required to provide Fallon with the requested

information because the information is “public information” and owned by the

Cancer Center. Fallon attached to his response the same exhibits that he had

previously attached to his own summary-judgment motion. Fallon also opposed the

Physicians Network’s motion to file its four summary-judgment exhibits in

camera.16

The trial court granted the Physicians Network’s motion to file its four

summary-judgment exhibits in camera pursuant to the PIA.17 The trial court then

granted Physicians Network’s cross-motion for summary judgment and denied

Fallon’s summary-judgment motion, ruling that the Physicians Network is not a

“governmental body” under the PIA.

Standard of Review

We review a trial court’s decision to grant summary judgment de novo. Tex.

Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007).

Although the denial of a summary-judgment motion is normally not appealable, we

15
See id. § 552.003(1)(A)(xii).
16
See id. § 552.3221.
17
Fallon did not appeal the trial court’s order granting the Physician Network’s motion
to file its four summary-judgment exhibits in camera pursuant to the PIA. See id.

8
may review such a denial when both parties have moved for summary judgment and

the trial court grants one motion and denies the other. Id. In our review of such

cross-motions, we review the summary-judgment evidence presented by each party,

determine all issues presented, and render the judgment that the trial court should

have rendered. Id. If we determine that a fact issue precludes summary judgment

for either party, we remand the cause for trial. See Univ. of Tex. Health Sci. Ctr. at

Hous. v. Big Train Carpet of El Campo, Inc., 739 S.W.2d 792, 792 (Tex. 1987).

To prevail on a matter-of-law summary-judgment motion, a movant has the

burden of establishing that he is entitled to judgment as a matter of law and there is

no genuine issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900

S.W.2d 339, 341 (Tex. 1995). When a plaintiff moves for summary judgment on

his own claim, he must conclusively prove all essential elements of his cause of

action. Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). When a

defendant moves for summary judgment, it must either (1) disprove at least one

essential element of the plaintiff’s cause of action or (2) plead and conclusively

establish each essential element of its affirmative defense, thereby defeating the

plaintiff’s cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex.,

N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

When deciding whether there is a disputed, material fact issue precluding summary

judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr.

9
Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Every reasonable inference

must be indulged in favor of the non-movant and any doubts must be resolved in the

non-movant’s favor. Id. at 549.

Summary Judgment

In five issues, Fallon argues that the trial court erred in granting the Physicians

Network summary judgment and denying him summary judgment because the

Physicians Network constitutes a “governmental body” under the PIA; the

Physicians Network acts as the functional equivalent of a “governmental body” and

is subject to the PIA; the Physicians Network is required to provide Fallon with the

requested information regardless of whether it is a “governmental body”; and none

of the exceptions to disclosure under the PIA apply to the instant case.

A. Governmental Body

The purpose of the PIA is to provide the public with “complete information

about the affairs of government and the official acts of public officials and

employees.” TEX. GOV’T CODE ANN. § 552.001(a); Jackson v. State Office of Admin.

Hearings, 351 S.W.3d 290, 293 (Tex. 2011) (internal quotations omitted); see also

Paxton v. City of Dall., 509 S.W.3d 247, 251 (Tex. 2017) (fundamental precept of

PIA is that “[t]he people, in delegating authority, do not give their public servants

the right to decide what is good for the people to know and what is not good for them

to know” (alteration in original) (internal quotations omitted)). Under the PIA, a

10
“governmental body” must promptly produce “public information” on request unless

an exception to disclosure applies and is timely asserted. See TEX. GOV’T CODE

ANN. §§ 552.101–.159, 552.221; see also Paxton, 509 S.W.3d at 251; CareFlite v.

Rural Hill Emergency Med. Servs., Inc., 418 S.W.3d 132, 136 (Tex. App.—Eastland

2012, no pet.). Thus, as the Texas Supreme Court has noted, the consequences of

an entity being characterized as a “governmental body” are considerable. Greater

Hous. P’ship v. Paxton, 468 S.W.3d 51, 57 (Tex. 2015) (“[A]n entity’s disclosure

obligations under the []PIA hinge on whether it is in fact a governmental body.”

(internal quotations omitted)); see also Cooper v. Circle Ten Council Boy Scouts of

Am., 254 S.W.3d 689, 694 (Tex. App.—Dallas 2008, no pet.) (“If a person requests

public information from a governmental body and the governmental body fails to

disclose the information, the requestor may enforce the statutory right of access by

suing for a writ of mandamus to compel disclosure.”).

The PIA provides several definitions of a “[g]overnmental body.” See TEX.

GOV’T CODE ANN. § 552.003(1) (internal quotations omitted); see also Greater

Hous., 468 S.W.3d at 57 (PIA defines “governmental body as one of twelve different

types of entities” (internal quotations omitted)); CareFlite, 418 S.W.3d at 136.

Determining whether an entity is a “governmental body” that is subject to the

disclosure requirements of the PIA is a matter of statutory construction that we

11
review de novo. See Greater Hous., 468 S.W.3d at 58 (internal quotations omitted);

City of Garland v. Dall. Morning News, 22 S.W.3d 351, 357 (Tex. 2000).

Relevant to the instant case, the PIA defines a “[g]overnmental body” as

follows:

(i) a board, commission, department, committee, institution,
agency, or office that is within or is created by the executive or
legislative branch of state government and that is directed by one
or more elected or appointed members; [and]

...

(xii) the part, section, or portion of an organization, corporation,
commission, committee, institution, or agency that spends or that
is supported in whole or in part by public funds[.]

TEX. GOV’T CODE ANN. § 552.003(1)(A)(i), (xii).

When interpreting a statute, our primary objective is to ascertain and give

effect to the Legislature’s intent without unduly restricting or expanding the statute’s

scope. Greater Hous., 468 S.W.3d at 58; City of Lorena v. BMTP Holdings, L.P.,

409 S.W.3d 634, 641 (Tex. 2013). We seek that intent first and foremost in the plain

meaning of the text. Greater Hous., 468 S.W.3d at 58; City of Lorena, 409 S.W.3d

at 641; see also Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d

628, 635 (Tex. 2010). “Undefined terms in a statute are typically given their

ordinary meaning, but if a different or more precise definition is apparent from the

term’s use in the context of the statute, we apply that meaning.” TGS–NOPEC

Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011); see also Greater
12
Hous., 468 S.W.3d at 58. “However, we will not give an undefined term a meaning

that is out of harmony or inconsistent with other terms in the statute.” State v.

$1,760.00 in U.S. Currency, 406 S.W.3d 177, 180 (Tex. 2013); see also Greater

Hous., 468 S.W.3d at 58. Therefore, even if an undefined term has multiple

meanings, we recognize and apply only the meanings that are consistent with the

statutory scheme as a whole. Greater Hous., 468 S.W.3d at 58. We only resort to

rules of construction or extrinsic aids when a statute’s words are ambiguous. Id.;

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). Finally, in

construing the PIA, we are mindful of the legislative mandate that the PIA “shall be

liberally construed in favor of granting a request for information.” TEX. GOV’T CODE

ANN. § 552.001(b); see also id. § 552.001(a); Greater Hous., 468 S.W.3d at 58.

1. Created by the executive or legislative branch of state
government and directed by one or more elected or
appointed members.

In his first issue, Fallon argues that the Physicians Network constitutes a

“governmental body” under the PIA because, under Texas Government Code section

552.003(1)(A)(i), the Cancer Center created the Physicians Network, the Cancer

Center is “a division of the University of Texas System, an institution within the

executive branch of the state government,” and the Physicians Network was

indirectly created by the executive branch of the state government. Further,

according to Fallon, the Cancer Center “appoints each and every member of [the

13
Physician Network’s] [b]oard of [d]irectors” and the Cancer Center “exerts actual

control over [the Physicians Network’s] operation.”18 See TEX. GOV’T CODE ANN.

§ 552.003(1)(A)(i). In response, the Physicians Network asserts, inter alia, that it

does not constitute a “governmental body” because it is a non-profit corporation and

section 552.003(1)(A)(i) does not apply to a corporation.

The plain language of section 552.003(1)(A)(i) states that a “[g]overnmental

body” means “a board, commission, department, committee, institution, agency, or

office that is within or is created by the executive or legislative branch of state

government and that is directed by one or more elected or appointed members.” Id.

§ 552.003(1)(A)(i) (emphasis added). Notably absent from this definition is the

word “corporation.” See Tex. Lottery Comm’n, 325 S.W.3d at 635 (“We rely on the

plain meaning of the text as expressing legislative intent . . . .”). We presume that

the Legislature chooses a statute’s language with care, including each word chosen

18
We note that the Attorney General in his open records letter ruling rejected Fallon’s
assertion that the Physicians Network is a “governmental body” under Texas
Government Code section 552.003(1)(A)(i). See Tex. Att’y Gen. OR2016-22964
(finding only “governmental body” definition relevant to instant case to be
definition concerning “public funds” under section 552.003(1)(A)(xii) (internal
quotations omitted)); see also TEX. GOV’T CODE ANN. § 552.306 (“Rendition of
Attorney General Decision; Issuance of Written Opinion”); Tex. Ass’n of Appraisal
Dists., Inc. v. Hart, 382 S.W.3d 587, 591 (Tex. App.—Austin 2012, no pet.) (“[I]n
construing the PIA, we give due consideration to the Attorney General’s PIA
decisions, even though they are not binding . . . .”); Hous. Indep. Sch. Dist. v. Hous.
Chronicle Publ’g Co., 798 S.W.2d 580, 588 (Tex. App.—Houston [1st Dist.] 1990,
writ denied) (Attorney General PIA decisions should be given great weight by
courts, although they are not binding on them).

14
for a purpose, while purposefully omitting words not chosen. See Combs, 340

S.W.3d at 439; Choice! Power, L.P. v. Feeley, 501 S.W.3d 199, 211 (Tex. App.—

Houston [1st Dist.] 2016, no pet.). When statutory text is clear, it is determinative of

legislative intent, unless enforcing the plain meaning of the statute’s words would

produce an absurd result. Entergy Gulf States, 282 S.W.3d at 437; Choice! Power,

501 S.W.3d at 211. As the Texas Supreme Court has explained, most of the entities

listed as “governmental bod[ies]” in section 522.003(1) are identified quite precisely

by the Legislature in the statute. Greater Hous., 468 S.W.3d at 57.

Fallon concedes that section 552.003(1)(A)(i) does not specifically include

the term “corporation,” but instead argues that the section is applicable to the

Physicians Network because it includes the term “institution.” (Internal quotations

omitted.) And, according to Fallon, the dictionary definition of the term “institution”

is broad enough to include a non-profit corporation such as the Physicians

Network.19 (Internal quotations omitted).

The words of a statute cannot be examined in isolation but must be construed

based on the context in which they are used. Combs, 340 S.W.3d at 441; Choice!

Power, 501 S.W.3d at 211. Black’s Law Dictionary defines institution as: “An

established organization, esp. one of a public character, such as a facility for the

treatment of mentally disabled persons.” Institution, BLACK’S LAW DICTIONARY

19
The parties do not dispute that the Physicians Network is a corporation.

15
(11th ed. 2019). Despite Fallon’s assertion that the term “institution” could take the

“legal form of a corporation,” we note that the clear language of the statute shows

that the Legislature did not intend for the term “institution” to include a corporation.

(Internal quotations omitted.) See Greater Hous., 468 S.W.3d at 61 (“The canon of

statutory construction known as noscitur a sociis—‘it is known by its associates’—

holds that the meaning of a word or phrase, especially one in a list, should be known

by the words immediately surrounding it. We rely on this principle to avoid

ascribing to one word a meaning so broad that it is incommensurate with the

statutory context.” (internal citation omitted)).

For instance, in section 552.003(1)(A)(xii), the Legislature specifically

identified both “corporation[s]” and “institution[s]” as entities that constitute

“[g]overnmental bod[ies]” if they “spend or [are] supported in whole or in part by

public funds.” See TEX. GOV’T CODE ANN. § 552.003(1)(A)(xii) (“[g]overnmental

body” means “the part, section, or portion of an organization, corporation,

commission, committee, institution, or agency that spends or that is supported in

whole or in part by public funds” (emphasis added)); see also id.

§§ 552.003(1)(A)(ix) (identifying as “[g]overnmental body” “a nonprofit

corporation organized under Chapter 67, Water Code, that provides a water supply

or wastewater service, or both, and is exempt from ad valorem taxation” (emphasis

added)), 552.003(1)(A)(xi) (identifying as “[g]overnmental body” “a nonprofit

16
corporation that is eligible to receive funds under the federal community services

block grant program and that is authorized by this state to serve a geographic area of

the state” (emphasis added)). To conclude that the term “institution” identified in

section 552.003(1)(A)(i) includes the term “corporation” would render the use of the

term “corporation” in section 552.003(1)(A)(xii) as mere surplusage. See Kallinen

v. City of Hous., 462 S.W.3d 25, 28 (Tex. 2015). As the Texas Supreme Court has

recognized, a term’s meaning must be in harmony and consistent with other statutory

terms and if a more limited or precise definition is apparent from the term’s use in

the context of the statute, we will apply that meaning. Sw. Royalties, Inc. v. Hegar,

500 S.W.3d 400, 405 (Tex. 2016); $1,760.00, 406 S.W.3d at 180 (“[W]e will not

give an undefined term a meaning that is out of harmony or inconsistent with other

terms in the statute.”).

Based on the foregoing, we hold that the Physicians Network, a non-profit

corporation, does not constitute a “governmental body” under Texas Government

Code section 552.003(1)(A)(i), which defines a “[g]overnmental body” as “a board,

commission, department, committee, institution, agency, or office that is within or

is created by the executive or legislative branch of state government and that is

directed by one or more elected or appointed members.” TEX. GOV’T CODE ANN.

§ 552.003(1)(A)(i). And the trial court did not err in granting the Physicians

Network summary judgment and denying Fallon summary judgment on such a basis.

17
We overrule Fallon’s first issue.

2. Supported in whole or in part by public funds.

In his second issue, Fallon argues that the Physicians Network constitutes a

“governmental body” under the PIA because, under Texas Government Code section

552.003(1)(A)(xii), the Physicians Network is supported by public funds and it

“operates as the functional equivalent of” a “governmental body.” See id.

§ 552.003(1)(A)(xii). In response, the Physicians Network asserts that it is not a

“governmental body” under section 552.003(1)(A)(xii) because it is not sustained

by public funding; it could continue to perform the same or similar services without

any of the funds that it receives from the Cancer Center for the services it provides

to the Cancer Center; the vast majority of its revenue comes from its contractual

relationships with entities that are not the Cancer Center and that are not

governmental bodies; the services that the Physicians Network provides to and

receives from the Cancer Center are pursuant to a series of quid pro quo contracts;

and the functional-equivalency test advanced by Fallon is not the “test” for

determining whether an entity constitutes a “governmental body” and thus subject

to the PIA’s disclosure requirements.

Section 552.003(1)(A)(xii) states that a “[g]overnmental body” means “the

part, section, or portion of an organization, corporation, commission, committee,

institution, or agency that spends or that is supported in whole or in part by public

18
funds.” Id. (emphasis added). “Public funds” means “funds of the state or of a

governmental subdivision of the state.” Id. § 552.003(5) (internal quotations

omitted). The Texas Supreme Court has held that the phrase “supported in whole or

in part by public funds” includes only those private entities, or their sub-parts, that

are sustained, at least in part, by public funds, “meaning [that] they could not perform

the same or similar services without the public funds.” Greater Hous., 468 S.W.3d

at 63 (internal quotations omitted). In other words, section 552.003(1)(A)(xii)

“encompasses only those private entities [that are] dependent on the public fisc to

operate as a going concern.” Id. at 61.

In Greater Houston, the Texas Supreme Court addressed the question of

whether a private entity constituted a “governmental body” and was thus subjected

to the public disclosure requirements under the PIA. Id. at 53 (internal quotations

omitted). There, Greater Houston Partnership (“GHP”), a non-profit corporation,

provided economic-development services to the City of Houston (the “City”) and

other clients pursuant to quid pro quo contracts. Id. at 54. GHP’s stated purpose is

to enhance economic prosperity, facilitate business relocation and expansion,

encourage international outreach initiatives, and provide strategic planning to

advocate for “the improvement of commercial, industrial, agricultural, civic, and

cultural affairs” in the Houston region. Id. (internal quotations omitted). Consistent

with its purpose, GHP provides consulting, event planning, and marketing services

19
to approximately 2,100 member companies on a contractual basis. Id. GHP

provided such services to the City for several years. Id.

Pursuant to the PIA, a City-resident requested from GHP copies of its 2007

and 2008 check registers, asserting that GHP constituted a “governmental body”

under the PIA because it is an entity “that spends or that is supported in whole or in

part by public funds.” Id. at 54–55 (internal quotations omitted); see also TEX.

GOV’T CODE ANN. § 552.003(1)(A)(xii). GHP objected to the resident’s request,

asserting that, although it receives public funds from the City, it does not qualify as

a “governmental body” under the PIA because (1) the public funds were for

compensation for services provided pursuant to a quid pro quo contract with the

City, (2) the City’s annual payments under the contract amounted to less than eight

percent of GHP’s annual revenue, while revenue from GHP’s other member

companies totaled more than ninety percent of GHP’s annual revenue, and (3) only

four of GHP’s 2,100 member companies could be described as “governmental

bodies.” Greater Hous., 468 S.W.3d at 55 (internal quotations omitted). In an open

records letter ruling, the Attorney General conclude that GHP was a “governmental

body” subject to the PIA’s disclosure requirements. Id. at 55 (internal quotations

omitted). Similarly, the trial court found that GHP constituted a “governmental

body” supported by public funds and ordered the disclosure of GHP’s 2007 and 2008

check registers. Id. at 55–56 (internal quotations omitted). After the court of appeals

20
affirmed the trial court’s ruling, GHP sought review by the Texas Supreme Court.

Id. at 56–57.

On appeal, the Texas Supreme Court sought to determine whether GHP

constituted a “governmental body” under the PIA because a “part, section, or

portion” of it “is supported in whole or in part by public funds.” Id. at 56–63, 66–

67 (internal quotations omitted); see also TEX. GOV’T CODE ANN.

§ 552.003(1)(A)(xii). According to GHP, the Legislature only intended for private

entities that were created or that exist to carry out governmental functions, and

whose existences are maintained in whole or in part with public funds, to be subject

to the disclosure requirements of the PIA. Greater Hous., 468 S.W.3d at 58. The

Supreme Court agreed, concluding that the PIA only applies to private entities acting

as the functional equivalent of the government and that are “sustained” by public

funds. Id. at 53–54, 58–63 (internal quotations omitted). As the Court explained:

To be “sustained” by public funds suggests the existence of a
financially dependent relationship between the governmental body and
a private entity or its subdivision redolent of that between a parent and
child or principal and agent. Financial dependency need not be
absolute, however. Rather, the government could be one of several
contributing sources. But sustenance implies that if the government
ceased to provide financial support, the entity would be unable to meet
its financial obligations. Unquestionably, a private entity would qualify
under a financially dependent construction of “supported” if it could
not pursue its mission and objectives without the receipt of public
funds, even if that funding only partially financed the entity’s
endeavors. In short, an entity “supported” by public funds would not
just receive government funds; it would require them to operate in
whole or in part.
21
Id. at 60–61. And by concluding that “supported . . . by public funds” only includes

those private entities that are “sustained” by public funds, this ensures that the PIA

“encompasses only those private entities dependent on the public fisc to operate as

a going concern,” i.e. they could not perform the same or similar services without

the public funds that they receive. Id. at 61, 63 (internal quotations omitted).

Turning to GHP, specifically, the Supreme Court noted that “[d]etermining

whether a partially funded entity qualifies as a ‘governmental body’ . . . require[s]

[a] case-specific analysis and a close examination of the facts.” Id. at 63. In the case

of GHP, the evidence showed that GHP receives only a small portion of its revenue

from its contracts with a “governmental body” and it could continue to operate given

the substantial revenue it derives from other non-governmental sources even if

GHP’s governmental contracts were eliminated. Id. at 55, 61, 66–67 (“The City’s

annual payments under [its] contract [with GHP] amounted to less than [eight

percent] of GHP’s total annual revenue; [other] member [companies’] contributions,

on the other hand, totaled more than [ninety percent] of its revenue.”). Simply put,

because GHP “does not require public funds,” it “is not sustained by public funds.”

Id. at 61. The Court further noted that GHP is not rendered a “governmental body”

because it receives funds pursuant to a quid pro quo agreement or contract with the

government, without considering whether such an agreement provides the entity’s

only funding source. Id. at 58, 60, 63, 66–67. Accordingly, the Court held that “an
22
entity, like GHP, that does not depend on any particular revenue source to survive—

public or private—is not sustained even in part by government funds.” Id. at 63.

Thus, GHP did not constitute a “governmental body” under the PIA and was not

subject to the PIA’s disclosure requirements. Id. at 67 (internal quotations omitted).

As the Texas Supreme Court recognized, although “[t]ransperancy, openness, and

accountability in the government are all of fundamental importance,” “these

important policy objectives cannot extinguish the privacy rights properly belonging

to private business entities in Texas.” Id. at 53, 67 (“Transparency is a real concern,

to be sure, and the []PIA’s liberal-construction mandate reflects the depth of this

interest. But liberal construction is not tantamount to boundless reach.”).

In the instant case, the evidence shows that the Physicians Network is a

non-profit corporation created exclusively for charitable, educational, and scientific

purposes, including the “emphasiz[ing] clinical, educational, and scientific aspects

of cancer care throughout the State of Texas, the United States, and in foreign

countries.” Additionally, the Physicians Network’s purposes include “[p]roviding

health care to the public, including but not limited to the delivery of physician

medical services and other health care services,” “[s]upporting health care

education,” and providing grants to conduct research and develop educational

programs “to further and improve the ability of health care professionals and

23
facilities to provide health care services to the public.” Thus, the Physicians

Network engages in,

the carrying out of scientific research and research projects in the public
interest in the fields of medical sciences, medical economics, public
health, sociology, and related areas; the supporting of medical
education in medical schools through grants and scholarships; the
improving and developing of the capabilities of individuals and
institutions studying, teaching, and practicing medicine; the delivery of
health care to the public; and the engaging in the instructions of the
general public in the area of medical science, public health, and hygiene
and related instruction useful to the individual and beneficial to the
community.

Notably, the Physicians Network is a separate and distinct entity from the

Cancer Center, with its own Certificate of Formation and bylaws. The Physicians

Network is managed and controlled by its own board of directors which is composed

entirely of physicians engaged in the practice of medicine. And it has its own

employees and maintains its own benefits plans for its employees.

The Physicians Network offers four general categories of programs and

services to its clients: (1) quality improvement affiliation programs, including its

Certified Member Program, (2) an Employer Contracting program, (3) community

oncology programs, and (4) strategic advisory and management support services.

The purpose of the Physicians Network’s Certified Member Program is to “help[]

community hospitals located outside of the State of Texas improve the quality of

oncology care that those hospitals provide to cancer patients in their respective

communities.” As part of the Certified Member Program, the Physicians Network
24
“contracts directly with out-of-state community hospitals and provides oncology

quality improvement and best practices services” that have been developed by the

Physicians Network. These best practices services include “quality evaluation,

oncology disease management, quality management, and improvement for oncology

services, outcomes measurement and reporting, and peer to peer consultation.”

The Certified Member Program includes two phases and two separate

contracts: the development phase, governed by a development agreement, and the

affiliation phase, governed by a separate affiliation agreement. Initially, the

Physicians Network enters into a development agreement with a prospective

community hospital, and during the development phase, the Physicians Network

“assesses the quality of care provided by the community hospital[] and assists [the]

hospital[] in improving any deficiencies to meet the qualification standards for the

Certified Member Program.” Under the development agreement, a community

hospital pays the Physicians Network a fee for the development-phase services that

it provides to the community hospital. If the Certified Member Program participant,

i.e., a community hospital, meets the Certified Member Program’s qualification

standards, then the community hospital enters the affiliation phase and signs an

affiliation agreement with the Physicians Network.

The Cancer Center is not a party to any of the development agreements,

affiliation agreements, or any other contracts that the Physicians Network enters into

25
in connection with its Certified Member Program. The Cancer Center does not

receive any payments from the Physicians Network’s Certified Member Program,

and the Cancer Center does not pay for any services performed by the Physicians

Network, any physicians, or any other employees at the community hospitals that

are a part of the Physicians Network’s Certified Member Program.

Pursuant to its Employer Contracting program, the Physicians Network also

provides member services to contracted employers and “professional oncology

services to enrollees in the contracted employers’ health plans through a provider

network.” “As compensation, the contracted employers pay [the] Physicians

Network a fee for the member services” that it provides. The Physicians Network

currently maintains employer contracts with two large international employers.

Related to its community oncology programs, in the Houston area, the

Physicians Network employs approximately fifteen oncologists who provide direct

patient care to patients in four satellite oncology centers that are owned and operated

by the Cancer Center. The Physicians Network employs the oncologists pursuant to

quid pro quo contractual arrangements between the Cancer Center and the

Physicians Network. More specifically, the Physicians Network and the Cancer

Center “have entered into agreements for physician coverage and physicist services,

pursuant to which [the] Physicians Network provides employees to [the] Cancer

Center in connection with the operation of [the Cancer Center’s] satellite oncology

26
centers[,] and in return, [the] Cancer Center reimburses [the] Physicians Network

for the costs of employing the physicians and physicists.”

The Physicians Network also provides “medical direction services and

physics support services for a gamma knife program that is operated at a community

hospital in Houston that is not related to or affiliated with [the] Cancer Center.” And

the Physicians Network “contracts with a private hospital system located in

Albuquerque, New Mexico” and provides services, such as employing the radiation

oncology physicians and other clinical staff who provide direct patient care to

patients at the radiation oncology centers that are owned and operated by the

Albuquerque private hospital system.

Finally, the Physicians Network provides “strategic advisory and management

support services to [the] Cancer Center” pursuant to a Services Agreement and other

contractual arrangements. The Physicians Network and the Cancer Center first

entered into a contractual arrangement in 1996, and the current Services Agreement

between the Physicians Network and the Cancer Center was signed in 2016. A copy

of the current Services Agreement appears in the record. Exhibits to the Services

Agreement delineate the services to be provided by the Physicians Network to the

Cancer Center and vice versa. The exhibits also address the “[c]ompensation for

services” that each entity will receive.

27
In regard to the Physicians Network’s revenue, the evidence shows that the

vast majority of the Physicians Network’s revenue is derived from its contractual

relationships with entities that are not the Cancer Center and not Texas governmental

bodies. The Physicians Network has an approximately $66 million operating

revenue annually. In 2015, 91.87% of the Physicians Network’s annual revenue

came from the services it provided to third-party community hospitals, hospital

systems, and other private entities, whereas 8.13% of its annual revenue came from

services provided to the Cancer Center. In 2016, 92.28% of the Physicians

Network’s annual revenue came from the services it provided to third-party

community hospitals, hospital systems, and other private entities, whereas 7.72% of

its annual revenue came from services provided to the Cancer Center. And in 2017,

93.5% of the Physicians Network’s annual revenue came from the services it

provided to third-party community hospitals, hospital systems, and other private

entities, whereas 6.5% of its annual revenue came from services provided to the

Cancer Center. The revenue that is received by the Physicians Network from the

Cancer Center is a result of certain quid pro quo contracts under which the

Physicians Network “provides certain services to [the] Cancer Center and [the]

Cancer Center provides certain services to [the] Physicians Network.” The

Physicians Network “pays more to [the] Cancer Center for the services that [the]

28
Cancer Center provides than [the] Physicians Network receives from [the] Cancer

Center for the services that [the] Physicians Network provides.”

Based on the foregoing, we cannot say that the Physicians Network constitutes

a private entity that is “sustained” by public funds. See id. at 60–61, 63

(“Determining whether a partially funded entity qualifies as a ‘governmental

body’ . . . require[s] [a] case-specific analysis and a close examination of the

facts.”). In other words, the evidence does not show that the Physicians Network is

in a “financially dependent relationship” with a “governmental body” or that the

Physicians Network requires public funds to operate in whole or in part. Id. at 60–

61. Simply put, the Physicians Network does not qualify as an entity that is

“supported . . . by public funds” because it is not “dependent on the public fisc to

operate as a going concern” and could still perform the same or similar services even

without the public funds that it receives from the Cancer Center. Id. at 60–61, 63

(internal quotations omitted).

Notably, the Physicians Network resembles GHP, another non-profit

corporation, that receives only a small portion of its revenue from its contracts with

a “governmental body” and that could continue to operate given the substantial

revenue derived from other non-governmental sources. See id. at 55, 61, 66–67.

Further, as the Texas Supreme Court determined related to GHP, the fact that the

Physicians Network receives funds pursuant to quid pro quo agreements or contracts

29
with the Cancer Center does not automatically render it a “governmental body”

under the PIA, especially considering that the compensation the Physicians Network

receives from the Cancer Center is not the entity’s only source of funding. See id.

at 58, 60, 63, 66–67. The Physicians Network, like GHP, “does not depend on any

particular revenue source to survive” and thus “is not sustained even in part by

governmental funds.” Id. at 63; see also Tex Att’y Gen. OR2015-23893 (non-profit

corporation and healthcare provider not “governmental body” where approximately

“[fifty-five percent] of its funding is from non-public funds” and “it does not depend

on public dollars to operate” (internal quotations omitted)); Tex. Att’y Gen.

OR2015-15568 (non-profit corporation not “governmental body” even where

“roughly half of its total support and revenue was received from public funds”

pursuant to contract with governmental entity because corporation “not sustained by

public funds” (internal quotations omitted)).

Fallon argues that the Physicians Network is unable to perform its services

without public funds because “Texas taxpayers, through [the Cancer Center], pa[y]

each member of [the Physicians Network’s] [b]oard of [d]irectors an average annual

salary of $442,170” or “nearly $4,000,000” in total. Further, “taxpayers paid [the

Cancer Center’s] President—the person who expressly and legally exercises

ultimate control over [the Physicians Network]—nearly $1,500,000 in 2015,” and

“taxpayers provide well over another million dollars to [the Physicians Network’s]

30
executive leadership . . . to run the day-to-day operations of” the Physicians

Network. Thus, because “[p]rivate funding could not replace the public funding of

[the Physicians Network’s] leadership,” the Physicians Network must be considered

“supported by public funds.”20

Initially, we note that, in his reply brief, Fallon appears to challenge an

affidavit that the Physicians Network attached to its response and cross-motion for

summary judgment because “portions of [the] affidavit . . . are inadmissible hearsay”

and thus cannot support the Physicians Network’s assertion that it is not sustained

by public funds. However, the Texas Rules of Appellate Procedure do not allow

inclusion of a new issue in a reply brief that was not raised by Fallon in his original

brief. See TEX. R. APP. P. 38.3; M Scott Constr., Ltd. v. Mireles, No.

14-15-00701-CV, 2016 WL 6990046, at *8 (Tex. App.—Houston [14th Dist.] Nov.

20
We note that the Attorney General in his open records letter ruling rejected Fallon’s
argument that the Physicians Network is unable to perform its services without
public funds because Texas taxpayers pay the salaries of the members of the
Physician Network’s board of directors, the Cancer Center’s President, and
Physicians Network’s executive leadership. See Tex. Att’y Gen. OR2016-22964
(finding Physicians Network not sustained by public funds and does not constitute
“governmental body” under TIA (internal quotations omitted)); see also TEX.
GOV’T CODE ANN. § 552.306 (“Rendition of Attorney General Decision; Issuance
of Written Opinion”); Hart, 382 S.W.3d at 591 (“[I]n construing the PIA, we give
due consideration to the Attorney General’s PIA decisions, even though they are not
binding . . . .”); Hous. Indep. Sch. Dist, 798 S.W.2d at 588 (Attorney General PIA
decisions should be given great weight by courts, although they are not binding on
them).

31
29, 2016, no pet.) (mem. op.); McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d

732, 737 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Thus, we conclude

that Fallon has waived any assertion that the affidavit that the Physicians Network

attached to its response and cross-motion for summary judgment should not be

considered as evidence supporting the granting of summary judgment in favor of the

Physicians Network because the affidavit constitutes inadmissible hearsay. Mireles,

2016 WL 6990046, at *8; McAlester Fuel, 257 S.W.3d at 737; see also Stovall &

Assocs., P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 797 (Tex. App.—Dallas

2013, no pet.) (blanket hearsay objection that does not identify which parts of

affidavit contain hearsay is not sufficient to preserve any argument to improper

admission or consideration of evidence).

Turning to Fallon’s assertions that Texas taxpayers pay the salaries of the

members of the Physician Network’s board of directors, the Cancer Center’s

President, and Physicians Network’s executive leadership, the evidence shows the

members of the Physicians Network’s board of directors do not receive “any salary

or compensation for their services as [d]irectors.”21 And yet the Physicians

Network’s bylaws state that the board of directors “shall . . . manage[]” the

21
The Supplemental Financial Statements for “Form 990” of the Physicians Network,
which Fallon attached to his summary-judgment motion, confirm such.

32
“property, business, and affairs” of the Physicians Network, and the board “shall

exercise all of the powers” of the Physicians Network.

Related to the Cancer Center’s president, who, according to the Physicians

Network’s bylaws, is the “sole [m]ember” of the non-profit corporation,22 we note

that there is no evidence that the Physicians Network’s “sole [m]ember” receives

any compensation for his role as the “sole [m]ember” of the Physicians Network.

See TEX. BUS. ORGS. CODE ANN. §§ 22.151(a) (non-profit corporation can be formed

with members or without members), 22.152 (members of non-profit corporation not

personally liable for obligation of corporation), 252.006 (non-profit association is

legal entity separate from its members); Sherman v. Boston, 486 S.W.3d 88, 94 (Tex.

App.—Houston [14th Dist.] 2016, pet. denied) (company is legal entity separate

from its sole member); Long Island Owner’s Ass’n v. Davidson, 965 S.W.2d 674,

22
According to the Physicians Network’s bylaws, the “sole [m]ember” of the
Physicians Network is tasked with appointing and removing directors and
performing other duties provided by law, the Physician Network’s Articles of
Incorporation, and its bylaws. The “sole [m]ember” must approve amendment of
the Physicians Network’s Articles of Incorporation and its bylaws. However, the
“sole [m]ember” is not liable for the debts, liabilities, or obligations of the
Physicians Network. See TEX. BUS. ORGS. CODE ANN. § 22.152 (members of
non-profit corporation not personally liable for obligation of corporation); Sherman
v. Boston, 486 S.W.3d 88, 94 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)
(company is legal entity separate from its sole member); Long Island Owner’s Ass’n
v. Davidson, 965 S.W.2d 674, 680–81 (Tex. App.—Corpus Christi–Edinburg 1998,
pet. denied) (“As a corporation, LIOA is a legal entity separate from the persons
who compose it.”); Macedonia Baptist Church v. Gibson, 833 S.W.2d 557, 559
(Tex. App.—Texarkana 1992, writ denied) (“A corporation is a separate legal entity,
distinct and apart from its members . . . .”).

33
680–81 (Tex. App.—Corpus Christi–Edinburg 1998, pet. denied) (“As a

corporation, LIOA is a legal entity separate from the persons who compose it.”);

Macedonia Baptist Church v. Gibson, 833 S.W.2d 557, 559 (Tex. App.—Texarkana

1992, writ denied) (“A corporation is a separate legal entity, distinct and apart from

its members . . . .”).

Further, regarding the Physicians Network’s executive leadership, the

evidence shows that the Physicians Network’s executive officers, including the

Physicians Network’s President and Chief Executive Officer,23 Vice President and

General Counsel, Vice President and Chief Financial Officer, and various Vice

Presidents and Associate Vice Presidents, are not Cancer Center employees and are

not compensated through the Cancer Center. And to the extent that the Physicians

Network’s executive leadership or its board of directors, which is largely made up

of medical professionals, are also employed by other entities, such salaries received

by these medical professionals are unrelated to their service as part of the Physicians

Network’s executive leadership.24 See TEX. OCC. CODE ANN. § 162.001 (non-profit

23
According to the Physicians Network’s bylaws, the President of the Physicians
Network “shall be the Chief Executive Officer of the [Physicians Network].” And
“shall have general executive charge, management, and control of the properties,
business, and operations of the [Physicians Network] with all such powers as may
be reasonably incident to such responsibilities.” The President “shall have the
authority to agree upon and execute all leases, contracts, evidences of indebtedness,
and other obligations in the name of the [Physicians Network].”
24
The Physicians Network’s Amended and Restated Certificate of Formation and its
bylaws state that each director “shall at all times be a physician duly licensed to
34
health corporation may be certified by Texas Medical Board if its board of directors

is composed of licensed physicians and “actively engaged in the practice of

medicine”); see also 22 TEX. ADMIN. CODE § 177.1(2) (2019) (Tex. Med. Bd.,

Definitions) (“Actively engaged in the practice of medicine” means “[a] physician

on a full-time basis is engaged in diagnosing, treating or offering to treat any mental

or physical disease or disorder or any physical deformity or injury or performing

such actions with respect to individual patients for compensation . . . . The term

‘full-time basis,’ . . . shall mean at least [twenty] hours per week for [forty] weeks

duration during a given year.”).

Finally, we note that Fallon, in his briefing in this Court and in the trial court,

generally asserts, without citation to evidence, that “if [the] government funding,

which sustains [the Physician Network’s] leadership w[as] removed, [the Physicians

Network] would not have provision for the most fundamental activities needed to

operate.” And “[w]ithout taxpayer dollars compensating [the Physicians Network’s]

sole member and its [b]oard of [d]irectors, [the Physicians Network] would cease to

function altogether. Consequently, [the Physicians Network] requires public

practice medicine by the Texas State Board of Medical Examiners and shall be
actively engaged in the practice of medicine.” See TEX. OCC. CODE ANN. § 162.001
(non-profit health corporation may be certified by Texas Medical Board if its board
of directors is composed of licensed physicians and “actively engaged in the practice
of medicine”); see also 22 TEX. ADMIN. CODE § 177.1(2) (2019) (Tex. Med. Bd.,
Definitions) (defining “[a]ctively engaged in the practice of medicine”).

35
funding in order to be able to do anything.” Motions, arguments of counsel, and

bare assertions are not evidence. In re DISH Network, L.L.C., 563 S.W.3d 433, 439

(Tex. App.—El Paso 2018, no pet.); St. Paul Mercury Ins. Co. v. Stewart Builders,

Ltd., No. 01-09-00276-CV, 2011 WL 944377, at *10 (Tex. App.—Houston [1st

Dist.] Mar. 17, 2011, no pet.) (mem. op.); McCain v. NME Hosps., Inc., 856 S.W.2d

751, 757 (Tex. App.—Dallas 1993, no writ).

Based on the foregoing, we conclude that the Physicians Network, a

non-profit corporation, is not “sustained” by public funds. See Greater Hous., 468

S.W.3d at 58–63 (internal quotations omitted). This is the same conclusion that the

Attorney General reached after considering the same arguments that Fallon later

advanced in the trial court and on appeal. See Tex. Att’y Gen. OR2016-22964; see

also TEX. GOV’T CODE ANN. § 552.306 (“Rendition of Attorney General Decision;

Issuance of Written Opinion”); Tex. Ass’n of Appraisal Dists., Inc. v. Hart, 382

S.W.3d 587, 591 (Tex. App.—Austin 2012, no pet.) (“[I]n construing the PIA, we

give due consideration to the Attorney General’s PIA decisions, even though they

are not binding . . . .”); Hous. Indep. Sch. Dist. v. Hous. Chronicle Publ’g Co., 798

S.W.2d 580, 588 (Tex. App.—Houston [1st Dist.] 1990, writ denied) (Attorney

General PIA decisions should be given great weight by courts, although they are not

binding on them).

36
Accordingly, we hold that the Physicians Network, a non-profit corporation,

does not constitute a “governmental body” under Texas Government Code section

552.003(1)(A)(xii), which defines a “[g]overnmental body” as “the part, section, or

portion of an organization, corporation, commission, committee, institution, or

agency that spends or that is supported in whole or in part by public funds.” TEX.

GOV’T CODE ANN. § 552.003(1)(A)(xii). And the trial court did not err in granting

the Physicians Network summary judgment and denying Fallon summary judgment

on such a basis.

Because we have determined that the Physicians Network is not “sustained”

by public funds, we need not address Fallon’s argument that the Physicians Network

is the “functional equivalent” of a “governmental body” because it is supported by

public funds. See TEX. R. APP. P. 47.1.

We overrule Fallon’s second issue.

3. Related en banc opinion.

We note that in a separate, but related, appeal involving Fallon and the Cancer

Center, Fallon challenged the trial court’s orders denying him summary judgment

and granting the plea to the jurisdiction of the Cancer Center and its Officer for

Public Information in Fallon’s suit against them for a writ of mandamus and a

37
declaratory judgment.25 See Fallon v. Univ. of Tex. MD Anderson Cancer Ctr., No.

01-17-00146-CV, slip. op. at 2 (Tex. App.—Houston [1st Dist.] Aug. 27, 2019, no

pet. h.).

In that case, Fallon, pursuant to the PIA, sought certain information from the

Cancer Center that is similar to the information sought by Fallon from the Physicians

Network in the instant case. See slip. op. at 2–4. And the central issue on appeal

was whether the information requested by Fallon constituted “public information”

under the PIA. See slip. op. at 14–34 (internal quotations omitted); see also TEX.

GOV’T CODE ANN. § 552.002(a) (defining “public information” (internal quotations

omitted)).

As previously explained, under the PIA, a “governmental body” must

promptly produce “public information” on request unless an exception from

disclosure applies and is timely asserted. See TEX. GOV’T CODE ANN. §§ 552.101–

.159, 552.221; see also Paxton, 509 S.W.3d at 251; CareFlite, 418 S.W.3d at 136.

“[P]ublic information” is defined as follows:

information that is written, produced, collected, assembled, or
maintained under a law or ordinance or in connection with the
transaction of official business:

(1) by a governmental body;

(2) for a governmental body and the governmental body:
25
See TEX. GOV’T CODE ANN. § 552.321 (“Suit for Writ of Mandamus”); TEX. CIV.
PRAC. & REM. CODE ANN. §§ 37.001–.011 (DJA).

38
(A) owns the information;

(B) has a right of access to the information; or

(C) spends or contributes public money for the purpose of
writing, producing, collecting, assembling, or maintaining
the information; or

(3) by an individual officer or employee of a governmental body in
the officer’s or employee’s official capacity and the information
pertains to official business of the governmental body.

TEX. GOV’T CODE ANN. § 552.002(a) (internal quotations omitted); Fallon, slip. op.

at 18.26 “Information is in connection with the transaction of official business if the

information is created by, transmitted to, received by, or maintained by an officer or

employee of the governmental body in the officer’s or employee’s official capacity,

or a person or entity performing official business or a governmental function on

behalf of a governmental body, and pertains to official business of the governmental

body.” TEX. GOV’T CODE ANN. § 552.002(a-1); Fallon, slip. op. at 23. “Official

business means any matter over which a governmental body has any authority,

administrative duties, or advisory duties.” TEX. GOV’T CODE ANN. § 552.003(2-a)

(internal quotations omitted); Fallon, slip. op. at 23. Whether requested information

is “public information” under the PIA is a question of law. See slip. op. at 18 (citing

26
The PIA contains a non-exclusive list of categories of “public information” as well.
See TEX. GOV’T CODE ANN. § 552.022.

39
City of Garland, 22 S.W.3d at 357; Harris Cty. Appraisal Dist. v. Integrity Title Co.,

483 S.W.3d 62, 69 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)).

As explained in the Court’s en banc opinion in Fallon’s separate appeal, the

parties did not dispute that the requested information sought by Fallon from the

Cancer Center was information related to the Physicians Network’s Certified

Member Program and that the requested information was not in the possession of

the Cancer Center. See Fallon, slip. op. at 19–20. Thus, under the PIA, Fallon

asserted that the information that he sought was “public information” because it was

“written, produced, collected, assembled, or maintained under a law or ordinance or

in connection with the transaction of official business . . . for a governmental body,”

i.e., the Cancer Center, and the “governmental body,” i.e., the Cancer Center, “ha[d]

a right of access to the information.” See slip. op. at 4–5, 8–9, 21–34; see also TEX.

GOV’T CODE ANN. § 552.002(a)(2)(B).

In determining whether the trial court erred in granting the Cancer Center’s

plea to the jurisdiction because the information sought by Fallon was indeed “public

information,” we first considered whether the Cancer Center had proved, as a matter

of law, that the Physicians Network does not maintain responsive information “in

connection with the transaction of official business” of the Cancer Center. See

Fallon, slip. op. at 23–27 (internal quotations omitted); see also TEX. GOV’T CODE

ANN. §§ 552.002(a), (a-1), 552.003(2-a). The Cancer Center argued that the

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Physicians Network did not maintain information responsive to Fallon’s public

information request “in connection with the transaction of official business” of the

Cancer Center because: (1) the Physicians Network constitutes a “separate legal

entity” from the Cancer Center, (2) the Physicians Network is not a “governmental

body,” and (3) the Physician’s Network’s Certified Member Program “is not the

official business” of the Cancer Center. See Fallon, slip. op. at 23–24 (internal

quotations omitted).

Although we ultimately concluded that the Cancer Center had failed to

establish, as a matter of law, that the information responsive to his public

information request and in the possession of the Physicians Network was not “in

connection with the transaction of official business” of the Cancer Center, we did

conclude that the Cancer Center had established that the Physicians Network was a

“separate legal entity” from the Cancer Center and that the Physicians Network did

not constitute a “governmental body.” See slip. op. at 23–27 (internal quotations

omitted). Our holding in the instant case that the Physicians Network does not

constitute a “governmental body” under Texas Government Code sections

552.003(1)(A)(i) and 552.003(1)(A)(xii) is in line with our conclusion in Fallon’s

separate, but related, appeal. See slip. op. at 24.

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B. Non-Governmental Body and Obligations under PIA

In his third issue, Fallon argues that, regardless of whether the Physicians

Network constitutes a “governmental body” under the PIA, it “must still make public

information available to [him] because he seeks information owned by [the Cancer

Center], that [the Cancer Center] has a right [of] access [to], and [the] storage [of the

information] is paid for by public funds.”

“[P]ublic information” is defined as:

information that is written, produced, collected, assembled, or
maintained under a law or ordinance or in connection with the
transaction of official business:

(1) by a governmental body;

(2) for a governmental body and the governmental body:

(A) owns the information;

(B) has a right of access to the information; or

(C) spends or contributes public money for the purpose of
writing, producing, collecting, assembling, or maintaining
the information; or

(3) by an individual officer or employee of a governmental body in
the officer’s or employee’s official capacity and the information
pertains to official business of the governmental body.

TEX. GOV’T CODE ANN. § 552.002(a) (emphasis added). Thus, Fallon asserts that

the Physicians Network is obligated to produce his requested information pursuant

to the PIA because the information that he seeks is owned by the Cancer Center, the

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Cancer Center has a right of access to the information, and the Cancer Center pays

or contributes public funds for storing of the information. We note that Fallon cites

no authority, other than the statutory definition of “[p]ublic information,” to support

his assertion that the Physicians Network must disclose his requested information

even though we have held that it does not constitute a “governmental body” under

the PIA. See TEX. R. APP. P. 38.1(i).

The purpose of the PIA is to provide the public with “complete information

about the affairs of government and the official acts of public officials and

employees.” TEX. GOV’T CODE ANN. § 552.001(a) (emphasis added); Jackson, 351

S.W.3d at 293 (internal quotations omitted); see also Paxton, 509 S.W.3d at 251

(fundamental precept of PIA is that “[t]he people, in delegating authority, do not

give their public servants the right to decide what is good for the people to know and

what is not good for them to know” (alteration in original) (internal quotations

omitted)); Austin Bulldog v. Leffingwell, 490 S.W.3d 240, 243–44 (Tex. App.—

Austin 2016, no pet.) (PIA “reflects the public policy that the people of Texas

remain[] informed so that they may retain control over the instruments they have

created” (alteration in original) (internal quotations omitted)); Thomas v. El Paso

Cty. Cmty. Coll. Dist., 68 S.W.3d 722, 726 (Tex. App.—El Paso 2001, no pet.) (PIA

“reflects the state policy that the public is entitled to have access to the information

on government affairs and officials acts” (emphasis added)). Thus, under the PIA,

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it is a “governmental body” that must promptly produce “public information” on

request unless an exception to disclosure applies and is timely asserted. See TEX.

GOV’T CODE ANN. §§ 552.101–.159, 552.221 (emphasis added); see also Paxton,

509 S.W.3d at 251; CareFlite, 418 S.W.3d at 136. And only if a “governmental

body” fails to disclose the requested public information, does the requestor have a

method of enforcing his statutory right by suing for a writ of mandamus to compel

the “governmental body” “to make [the] information available.” TEX. GOV’T CODE

ANN. § 552.321(a) (emphasis added); see also City of Hous. v. Hous. Mun. Emps.

Pension Sys., 549 S.W.3d 566, 583–84 (Tex. 2018); Nehls v. Hartman Newspapers,

LP, 522 S.W.3d 23, 29 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); Cooper,

254 S.W.3d at 694.

As the Texas Supreme Court has explained: “[A]n entity’s disclosure

obligations under the []PIA hinge on whether it is in fact a governmental body.”

Greater Hous., 468 S.W.3d at 57, 67 (internal quotations omitted) (holding

non-profit corporation did not constitute “governmental body” and not subject to

“invasive disclosure requirements” under PIA (internal quotations omitted)); see

also CareFlite, 418 S.W.3d at 142 (because entity “not a governmental body,” it was

“not subject to []PIA”); Keever v. Finlan, 988 S.W.2d 300, 305 (Tex. App.—Dallas

1999, pet. dism’d) (person not “governmental body” and therefore not subject to PIA

(internal quotations omitted)); Blankenship v. Brazos Higher Educ. Auth., Inc., 975

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S.W.2d 353, 362 (Tex. App.—Waco 1998, pet. denied) (because non-profit

corporation not “governmental bod[y],” PIA did not apply and no duty to provide

requested information). After all, the PIA does not have a “boundless reach.”

Greater Hous., 468 S.W.3d at 67.

Because we have held that the Physicians Network is not a “governmental

body” under the PIA, we further hold that it is not subject to the disclosure

obligations of the PIA and Fallon is not entitled to seek mandamus relief against the

Physicians Network to compel it to make the information he requested available

under the PIA.27 See Keever, 988 S.W.2d at 305 (relevant inquiry not whether

information sought was “public information,” but rather whether entity from whom

information was sought constituted “governmental body” and thus subject to PIA;

where entity not “governmental body,” requestor could not seek mandamus relief to

compel it to make information available under PIA (internal quotations omitted));

27
Our holding in this case does not preclude Fallon from seeking “public information”
from a “governmental body,” such as the Cancer Center. See Greater Hous. P’ship
v. Paxton, 468 S.W.3d 51, 67 (Tex. 2015) (although non-profit corporation did not
constitute “governmental body” under PIA and not required to disclose requested
information, nothing prevented requestor from seeking “public information” from
governmental entity directly (internal quotations omitted)); see also See Fallon v.
Univ. of Tex. MD Anderson Cancer Ctr., No. 01-17-00146-CV, slip. op. at 42 (Tex.
App.—Houston [1st Dist.] Aug. 27, 2019, no pet. h.) (reversing and remanding
“Fallon’s suit for a writ of mandamus to compel the Cancer Center to produce
information responsive to his public information request”).

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Blankenship, 975 S.W.2d at 362 (because non-profit corporation not “governmental

bod[y],” PIA did not apply and no duty to provide requested information).

We overrule Fallon’s third issue.

Due to our disposition of Fallon’s first, second, and third issues, we need not

address Fallon’s fourth issue in which he argues that the trial court erred in denying

him summary judgment because the Physicians Network presented no evidence of

any applicable exceptions to disclosure that may be invoked by a “governmental

body” under the PIA. See TEX. R. APP. P. 47.1; see, e.g., TEX. GOV’T CODE ANN.

§§ 552.101–.159 (“Information Excepted from Required Disclosure”). Fallon’s

fifth issue, in which he globally asserts that the trial court erred in granting the

Physicians Network summary judgment and denying him summary judgment, is

subsumed in our discussion of his first, second, and third issues. See TEX. R. APP.

P. 47.1. Finally, to the extent that Fallon asserts that he is not “collaterally estopped

from making his arguments” in the instant case, due to our disposition of Fallon’s

first, second, and third issues, we need not address this assertion. See id.

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Conclusion

We affirm the judgment of the trial court.

Julie Countiss
Justice

Panel consists of Justices Lloyd, Landau, and Countiss.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4433892. Public record. Not legal advice.