# Michael Fallon, M.D. v. the University of Texas MD Anderson Cancer Center and Craig Henderson as Officer for the Public Information for the University of Texas MD Anderson Cancer Center

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

URL: https://www.frixlaw.com/law-library/cases/4433893

## 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. 01-17-00146-CV
———————————
MICHAEL FALLON, M.D., Appellant
V.
THE UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER AND
CRAIG HENDERSON, AS OFFICER FOR PUBLIC INFORMATION FOR
THE UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER,
Appellees

On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2016-10013

OPINION ON EN BANC RECONSIDERATION

Appellees, The University of Texas MD Anderson Cancer Center and Craig

Henderson, as Officer for Public Information for The University of Texas MD

Anderson Cancer Center (collectively, the “Cancer Center”), have filed a motion for
en banc reconsideration of this Court’s December 20, 2018 memorandum opinion

and judgment. See TEX. R. APP. P. 49.7. The Court has unanimously voted to grant

en banc reconsideration. See TEX. R. APP. P. 41.2, 49.7. We withdraw our

memorandum opinion and judgment of December 20, 2018, and we substitute this

opinion and judgment in their stead.

Appellant, Michael Fallon, M.D., challenges the trial court’s orders denying

him summary judgment and granting the plea to the jurisdiction of the Cancer Center

in Fallon’s suit for a writ of mandamus and a declaratory judgment.1 In four issues,

Fallon contends that the trial court erred in denying him summary judgment,

granting the Cancer Center’s plea to the jurisdiction, and dismissing his

declaratory-judgment claim.

We affirm in part and reverse in part.

Background

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

in New York and the Cancer Center is a “governmental body” of the State of Texas.2

In October 2015, Fallon, pursuant to the Texas Public Information Act (“PIA”), 3

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. § 552.003(1).
3
See id. §§ 552.001–.353.

2
served the Cancer Center with a public information request, seeking nine categories

of information. In the first three categories of information (items 1-3), he sought

certain call records of the Cancer Center. In the remaining six categories (items 4-9),

he sought the following information from the Cancer Center:

4) All emails, faxes or other electronic communications to or from
the [twelve listed] individuals regarding the MDA affiliation
process with Lourdes Hospital, Binghamton NY, the MD
Anderson certification actions concerning Michael Fallon MD
and any other evaluation of Dr. Michael Fallon for the date range
9/1/2013 to the present[.]

5) The MD Anderson Physician[s] Network “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.

6) Gross affiliation revenue received by MDA from the [fourteen
listed] institutions.

7) Agreement and engagement documentation between MDA and
the [seven listed] consultants.

8) Fees paid to the [seven listed] consultants[.]

9) Affiliation and discovery/due diligence agreement
documentation between MDA and Our Lady of Lourdes
Memorial Hospital, Binghamton, NY[.]

In November 2015, Fallon clarified his request. For instance, Fallon made clear that

he did not “seek any patient, healthcare provider, or institutional identifiers” in his

public information request and that the physicians listed in item 5 referred to certain

radiation oncologists listed on the Cancer Center’s website.
3
In February 2016, the Cancer Center produced call records in response to the

first three categories of information (items 1-3) that Fallon had requested. And it

informed Fallon that it did not maintain information responsive to the remaining six

categories of information (items 4-9), but it noted that such information might be

maintained by a “separate legal entity,” i.e., MD Anderson Physicians Network (the

“Physicians Network”). (Internal quotations omitted.)

Because the Cancer Center refused to produce information responsive to items

4-9, Fallon seeks a writ of mandamus to compel the Cancer Center to produce

information responsive to his public information request.4 According to Fallon, even

if the information he seeks is maintained by the Physicians Network, such

information is still “public information” that the Cancer Center must provide under

the PIA.5 Fallon also seeks a declaration that the remaining information that he has

requested from the Cancer Center constitutes “public information” under the PIA.6

The Cancer Center answered, generally denying the allegations and asserting

“sovereign immunity as a defense.”

Fallon then filed a matter-of-law summary-judgment motion, arguing that the

information he seeks from the Cancer Center, pursuant to the PIA, constitutes

4
See id. § 552.321 (“Suit for Writ of Mandamus”).
5
See id. § 552.002(a) (defining “public information” (internal quotations omitted)).
6
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011.

4
“public information” as a matter of law because it is “written, produced, collected,

assembled, or maintained under a law or ordinance or in connection with the

transaction of official business” for a “governmental body,” i.e., the Cancer Center,

and the Cancer Center “has a right of access to the information.”7 (Internal

quotations omitted.) Fallon attached exhibits to his motion, including the Physicians

Network’s Amended and Restated Certificate of Formation and a “Form 990” tax

return for MD Anderson Services Corporation.

The Cancer Center filed a response and a plea to the jurisdiction, arguing that

the trial court lacks subject-matter jurisdiction because the PIA only provides “a

limited waiver of sovereign immunity” where “a governmental body . . . has

refused . . . to supply public information”; the Cancer Center did not “refuse to

supply public information,” rather it “released to Fallon all of the public information

responsive to his” public information request; and any information that the Cancer

Center did not produce does not constitute “public information” under the PIA as it

belongs to the Physicians Network, which is a “separate legal entity” and not a

“governmental body” under the PIA, the Cancer Center does not own the

information, does not have a right of access to the information, and does not spend

or contribute public money for the purpose of writing, producing, collecting,

assembling, or maintaining the information, and the information that Fallon seeks

7
See TEX. GOV’T CODE ANN. § 552.002(a)(2).

5
does not pertain to the official business of the Cancer Center.8 In regard to Fallon’s

summary-judgment motion, the Cancer Center reiterated that it had not refused to

supply Fallon with information responsive to his public information request, the

remaining information that Fallon seeks is not “public information,” and the Cancer

Center does not have a “right of access to the information.” The Cancer Center

attached exhibits to its response and plea, including the affidavit of its Vice President

of Global Business Development, Amy Hay, and an open records letter ruling of the

Texas Attorney General related to the Physicians Network.9

In her affidavit, Hay testified, in relevant part:

• “[The Cancer Center] is an agency of the State of Texas and
institution of The University of Texas System (‘System’).”

• “[The Physicians Network] is a private, Texas nonprofit
corporation.”

• “[The Physicians Network] is a separate legal entity from [the
Cancer Center] with an independent certificate of formation.”

• “[The Physicians Network] is governed by an independent board
of directors comprised entirely of physicians that is responsible
for the direction and management of the affairs of the
corporation.”

• “A primary purpose of [the Physicians Network] is to provide
quality improvement and best practices management services to
qualified community hospitals through [the Physicians

8
See id.
9
See Tex. Att’y Gen. OR2016-22964.

6
Network’s] Certified Member Program (‘Certified Member
Program’).”

• “Under the Certified Member Program, [the Physicians
Network] contracts and affiliates directly with community
hospitals (‘Certified Members’) which pay [the Physicians
Network] a fee as compensation for the services [the Physicians
Network] provides [to] such hospitals under the[] contracts.”

• “[The Cancer Center] is not a party to [the Physicians Network’s]
contracts with Certified Members, and [the Cancer Center] does
not receive fees for the services [the Physicians Network]
provides Certified Members or affiliation revenue from [the
Physicians Network’s] affiliations with Certified Members.”

• “[The Cancer Center] does not have an affiliation process or
affiliation and discovery/due diligence agreement with Our Lady
of Lourdes Memorial Hospital.”

• “[The Cancer Center] did not perform any certification actions
or other evaluation of Dr. Michael Fallon.”

• “[The Cancer Center] has not received gross affiliation revenue
from the institutions listed in item 5 of [Fallon’s public
information request].”

• “[The Physicians Network] contracts directly with [the Cancer
Center’s] faculty members who serve as consultants for [the
Physicians Network] in providing services to Certified
Members.”

• “[The Cancer Center] is not a party to any contracts between [the
Physicians Network] and such consultants, and [the Cancer
Center] does not pay or receive fees for the services such
consultants provide [the Physicians Network] or Certified
Members.”

7
• “[The Cancer Center] does not have consulting agreements with
the individuals listed in item 7 of [Fallon’s public information
request].”

• “[The Cancer Center] did not pay consulting fees to the
consultants listed in item 7 of [Fallon’s public information
request].”

In the open records letter ruling, the Texas Attorney General concluded that the

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

disclosure requirements.10 (Internal quotations omitted.)

In response to the Cancer Center’s plea to the jurisdiction, Fallon asserted that

the trial court has subject-matter jurisdiction under the PIA and the DJA. Related to

the PIA, Fallon asserted that he is entitled to file a suit for a writ of mandamus to

compel a “governmental body,” i.e., the Cancer Center, to make requested “public

information” available when that “governmental body” has refused to do so.

According to Fallon, although the Cancer Center produced some information in

response to his public information request, it refused to produce information

responsive to items 4-9 of his request and such information, even if it is in the

possession of the Physicians Network, constitutes “public information” that the

10
See id. (determining Physicians Network not sustained by public funds and does not
constitute “governmental body” under PIA (internal quotations omitted)).

8
Cancer Center must produce because the Cancer Center has a right of access to the

information.11

Before the trial court ruled on the Cancer Center’s plea to the jurisdiction and

Fallon’s summary-judgment motion, the Physicians Network filed a plea in

intervention, alleging that it is a non-profit corporation and not a “governmental

body” that is subject to the PIA or its disclosure requirements. According to the

Physicians Network, it is a separate and distinct legal entity from the Cancer Center

with its own board of directors and employees. The Cancer Center “does not direct

the business of [the] Physicians Network” and the Cancer Center does not have a

right of access to the Physicians Network’s “business records and/or other

documents and information that are related to [the] Physicians Network’s business

conducted with other third-party community hospitals.” The Physicians Network is

primarily focused on improving the quality of cancer care available to private

patients in community hospitals throughout the United States, and 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. When the Physicians Network

“does business with [the] Cancer Center, it does so pursuant to quid pro quo

contractual arrangements.” (Emphasis omitted.)

11
See TEX. GOV’T CODE ANN. § 552.002(a)(2).

9
Further, according to the Physicians Network, it 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 Certified Member Program “is to

help community hospitals improve the quality of oncology care that they provide to

cancer patients in their respective communities.” As part of the Certified Member

Program, the Physicians Network enters into contracts with out-of-state community

hospitals and provides oncology quality improvement and best practices services

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.”

Initially, a community hospital participates in a development phase and enters

into a development agreement with the Physicians Network which allows it “to

assess the quality of care provided by [the] hospitals and assist [the] hospitals in

meeting the requirements of” the Certified Member Program. Subsequently, the

community hospital enters into an affiliation agreement with the Physicians Network

and pays the Physicians Network a fee for the services that the Physicians Network

provides to the community hospital. The services provided by the Physicians

10
Network under the Certified Member Program are intended to benefit the

participating community hospitals and the cancer patients who receive care at those

hospitals. The Cancer Center is not a party to the development or affiliation

agreements or any other contracts that are part of the Certified Member Program.

Information relating to the Certified Member Program is not created and maintained

for the Cancer Center. And the Cancer Center does not have a right of access to

such information or the Physicians Network’s other documents and information

related to its business conducted with third-party community hospitals. According

to the Physicians Network, any documents related to the Certified Member Program

that Fallon seeks are not related to the services the Physicians Network provides to

the Cancer Center.

Under the Physicians Network’s Employer Contracting program the

Physicians Network provides “professional oncology services to enrollees in the

contracted employers’ health plans . . . through a provider network.” The Physicians

Network currently maintains employer contractors with two international

employers. The Physicians Network alleges that the information that Fallon seeks

in his public information request does not relate to its Employer Contracting

program.

Related to its community oncology programs, the Physicians Network

“employs approximately thirty (30) oncologists who provide direct care to patients

11
in five (5) satellite oncology centers,” “provides medical direction services and

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

hospital,” and “provides services with respect to radiation oncology centers that are

owned and operated by a private hospital system” in Albuquerque, New Mexico.

According to the Physicians Network, it provides the Cancer Center with some

services through its community oncology programs, but such services are provided

pursuant to a quid pro quo contract and the information that Fallon seeks in his public

information request does not relate to the Physicians Network’s community

oncology programs.

Finally, the Physicians Network “provides strategic advisory and management

support services to [the] Cancer Center pursuant to arm’s-length contractual

arrangements.” According to the Physicians Network, although it provides the

Cancer Center with some strategic advisory and management support services, such

services are provided pursuant to a quid pro quo contract and the information that

Fallon seeks in his public information request does not relate to the Physicians

Network’s strategic advisory and management support services.

Moreover, the Physicians Network explains in its plea in intervention that the

information that Fallon seeks in items 4-9 of his public information request does not

“relate to any work or services that [the] Physicians Network provide[s] to or for

[the] Cancer Center.” Rather, the information sought by Fallon relates to the

12
Physicians Network’s Certified Member Program, contracts between the Physicians

Network and third-party community hospitals, and services provided by the

Physicians Network to other third-party community hospitals. In other words, the

information sought by Fallon is not “public information” because it was created by

the Physicians Network, a non-governmental body. And the information was not

created and maintained for a “governmental body,” i.e., the Cancer Center, because

the information requested relates to the Physicians Network’s Certified Member

Program and contracts and services that the Physicians Network has provided to

third-party community hospitals “to improve the quality of care that they provide to

their cancer patients.” Still yet, even if the information that Fallon seeks is created

and maintained for the Cancer Center, the Cancer Center does not own the

information, have a right of access to the information, or contribute public funds for

the creation or maintenance of the information.12

The Physicians Network further opines that Fallon, through his public

information request, is attempting to obtain information responsive to items 4-9 to

use in a suit that he has filed against his former employer, Our Lady of Lourdes

Memorial Hospital (“Lourdes Hospital”), which is located in New York. According

12
Physicians Network also asserts that even if the information requested by Fallon
constitutes “public information” under the PIA, such information is excepted from
disclosure. See id. §§ 552.101–.159 (“Information Excepted from Required
Disclosure”).

13
to the Physicians Network, Lourdes Hospital, several years ago, entered into a

Certified Member Program development agreement with the Physicians Network.

And under that agreement, the Physicians Network conducted a quality evaluation

of Lourdes Hospital’s oncology programs and providers through a medical peer

review. After Lourdes Hospital terminated its contract with Fallon, Fallon sued the

hospital, alleging that the medical peer review conducted by the Physicians Network

under its development agreement with Lourdes Hospital resulted in the termination

of his contract with the hospital.

After a hearing, the trial court granted the Cancer Center’s plea to the

jurisdiction, denied Fallon’s summary-judgment motion, and dismissed Fallon’s suit

for a writ of mandamus and a declaratory judgment. The Physicians Network then

non-suited its plea in intervention.

Public Information

In his second and third issues, Fallon argues that the trial court erred in

denying him summary judgment and granting the Cancer Center’s plea to the

jurisdiction because the Cancer Center, a “governmental body” under the PIA, has

refused to provide certain information that Fallon requested and the information

sought by Fallon in items 4-9 of his public information request constitutes “public

information” under the PIA.

14
Notably, in the trial court, Fallon, in his summary-judgment motion, and the

Cancer Center, in its plea to the jurisdiction, sought a matter-of-law judgment on the

same issue, i.e., whether the information requested by Fallon in items 4-9 of his

public information request constitutes “public information” under the PIA. See TEX.

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

omitted)). Because the plea-to-the-jurisdiction standard of review mirrors that of a

matter-of-law summary-judgment motion in the instant case, we will consider

Fallon’s second and third issues together, reviewing the trial court’s denial of

Fallon’s summary-judgment motion and its granting of the Cancer Center’s

jurisdictional plea under a de novo standard that applies to cross-motions for

summary judgment. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755,

771 (Tex. 2018); Morello v. Seaway Crude Pipeline Co., No.

01-16-00765-CV, --- S.W.3d ---, 2018 WL 2305541, at *7 (Tex. App.—Houston

[1st Dist.] May 22, 2018, pet. denied) (because jurisdictional plea and

summary-judgment motion were effectively cross-dispositive motions, appellate

court reviewed under de novo standard of review that applies to cross-motions for

summary judgment); see also Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex.,

253 S.W.3d 184, 192 (Tex. 2007) (de novo standard of review for cross-motions for

summary judgment).

15
On cross-motions for summary judgment, each party bears the burden of

establishing that he is entitled to judgment as a matter of law. Tarr v. Timberwood

Park Owners Ass’n, 556 S.W.3d 274, 278–79 (Tex. 2018). 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.; Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136

S.W.3d 643, 648 (Tex. 2004). 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.,

16
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.

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.

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

“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 v.

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

2012, no pet.) (under PIA, “governmental body” required to disclose certain

information when requested).

17
“[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:

(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).13 Whether

requested information is “public information” under the PIA is a question of law.

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

Cty. Appraisal Dist. v. Integrity Title Co., 483 S.W.3d 62, 69 (Tex. App.—Houston

[1st Dist.] 2015, pet. denied). The Texas Legislature has specified that the PIA “shall

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

13
The PIA contains a non-exclusive list of categories of “public information” as well.
See id. § 552.022.

18
CODE ANN. § 552.001(b); see also id. § 552.001(a); Greater Hous. P’ship v. Paxton,

468 S.W.3d 51, 58 (Tex. 2015).

Texas Government Code section 552.321 waives sovereign immunity when,

as here, a “governmental body” fails to disclose requested information because it

does not consider the information to be “public information.” See TEX. GOV’T CODE

ANN. § 552.321; see also Nehls v. Hartman Newspapers, LP, 522 S.W.3d 23, 29

(Tex. App.—Houston [1st Dist.] 2017, pet. denied). Under such circumstances, a

requestor may enforce his statutory right by suing for a writ of mandamus to compel

the “governmental body” “to make [the requested] information available.” TEX.

GOV’T CODE ANN. § 552.321(a); Nehls, 522 S.W.3d at 29; Cooper v. Circle Ten

Council Boy Scouts of Am., 254 S.W.3d 689, 694 (Tex. App.—Dallas 2008, no pet.).

In the mandamus proceeding, the “governmental body” has the burden to prove that

the requested information is not “public information.” Adkisson v. Paxton, 459

S.W.3d 761, 772 (Tex. App.—Austin 2015, no pet.).

Here, it is undisputed that Fallon, in items 4-9 of his public information

request, seeks information related to the Physicians Network’s Certified Member

Program. And it is undisputed that the Cancer Center does not possess the

responsive information. However, as Fallon explains, in items 4-9, he does not seek

information possessed by the Cancer Center. Rather, he seeks information possessed

19
by the Physicians Network.14 In other words, he does not limit his public

information request to “public information” strictly in the possession of the Cancer

Center. Specifically, in items 4-9 of his public information request, Fallon seeks:

(4) “electronic communications” regarding the Physicians Network’s “affiliation

process” with Lourdes Hospital and any “evaluation[s]” of Fallon; (5) the Physicians

Network’s “reports” for certified “[r]adiation [o]ncologists” at certain Certified

Member community hospitals; (6) gross affiliation revenue received by the

Physicians Network from certain Certified Member community hospitals;

(7) agreement and engagement documentation between the Physicians Network and

14
We note the Cancer Center asserts that Fallon’s public information request does not
actually seek information possessed by the Physicians Network; instead, the request
seeks information possessed by the Cancer Center. And the Cancer Center insists
that it produced all responsive information in its possession. According to the
Cancer Center, Fallon could have served the Cancer Center with requests seeking
information possessed by the Physicians Network, but he did not do so. Thus, the
trial court properly dismissed Fallon’s suit for a writ of mandamus because the
Cancer Center never “refuse[d] to supply public information” in response to
Fallon’s public information request. See id. § 552.321(a). To the extent that the
wording of Fallon’s public information request created any confusion, Fallon later
clarified—in his amended petitions, his summary-judgment motion, and his
response to the Cancer Center’s plea to the jurisdiction—that he seeks information
possessed by the Physicians Network. Throughout most of this case, the Cancer
Center has been aware that Fallon seeks information in the possession of the
Physicians Network and that it is Fallon’s position that, although the information
sought is in the Physicians Network’s possession, the Cancer Center must produce
such information because the Cancer Center has a “right of access” to it. See id.
§ 552.002(a) (defining “[p]ublic information” (internal quotations omitted)).
Indeed, in its plea to the jurisdiction, the Cancer Center responded to Fallon’s
argument that the Cancer Center has a right of access to the information that Fallon
seeks, denying that it has any such a right and further arguing that, even if it did, the
information still would not constitute “public information” under PIA.

20
certain listed consultants; (8) the fees paid to such consultants; and (9) affiliation and

“discovery/due diligence agreement documentation” between the Physicians

Network and Lourdes Hospital.

A. Fallon’s Summary-Judgment Motion

In his third issue, Fallon argues that the trial court erred in denying him

summary judgment because the information that he seeks in items 4-9 of his public

information request to the Cancer Center, although in the possession of the

Physicians Network, constitutes “public information” as a matter of law under the

PIA. See TEX. GOV’T CODE ANN. § 552.002(a).

As previously explained, under the PIA, information still constitutes “public

information” if it is “written, produced, collected, assembled, or maintained under a

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

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

information.” Id. § 552.002(a)(2)(B) (internal quotations omitted). Thus, to have

prevailed on his summary-judgment motion, Fallon had to prove, as a matter of law,

that: (1) the information possessed by the Physicians Network that he seeks in

response to items 4-9 of his public information request is “in connection with the

transaction of official business” of the Cancer Center, (2) the information is written,

produced, collected, assembled, or maintained “for” the Cancer Center, and (3) the

Cancer Center has a “right of access to the information.” Id.

21
Notably, in his summary-judgment motion, Fallon only asserted that the

Cancer Center has a “right of access to the information.” See id. He did not address

whether the information is “in connection with the transaction of official business”

of the Cancer Center and whether the information is written, produced, collected,

assembled, or maintained “for” the Cancer Center. See Rhône–Poulenc, 997 S.W.2d

at 223 (when plaintiff moves for summary judgment on his own claim, he must

conclusively prove all essential elements of his cause of action); see also Escobedo

v. MO-VAC Serv., Co., No. 13-16-00435-CV, 2018 WL 3599195, at *4 (Tex. App.—

Corpus Christi–Edinburg July 27, 2018, pet. denied) (mem. op.) (trial court

improperly granted summary judgment where party did not address each element of

affirmative defense in summary-judgment motion).

Because Fallon did not address in his summary-judgment motion or establish

in the summary-judgment proceeding below, whether the information possessed by

the Physicians Network that he seeks in response to items 4-9 of his public

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

Cancer Center or that the information he seeks is written, produced, collected,

assembled, or maintained “for” the Cancer Center, he did not conclusively prove that

the information he seeks is “public information” under the PIA. See TEX. GOV’T

CODE ANN. § 552.002(a)(2)(B) (internal quotations omitted). Accordingly, we hold

that the trial court did not err in denying him summary judgment.

22
We overrule Fallon’s third issue.

B. Cancer Center’s Plea to the Jurisdiction

In his second issue, Fallon argues that the trial court erred in granting the

Cancer Center’s plea to the jurisdiction because the Cancer Center did not prove that

the information that Fallon seeks in items 4-9 of his public information request,

although in the possession of the Physicians Network, is not “public information” as

a matter of law under the PIA. See id.

We first consider whether the Cancer Center proved, as a matter of law, that

the information possessed by the Physicians Network that Fallon seeks is not “in

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

Under the PIA, “[i]nformation 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.” Id. § 552.002(a-1). “Official business means any matter over

which a governmental body has any authority, administrative duties, or advisory

duties.” Id. § 552.003(2-a) (internal quotations omitted).

The Cancer Center argues that the information responsive to items 4-9 of

Fallon’s public information request that is in the possession of the Physicians

23
Network is not “in connection with the transaction of official business” of the Cancer

Center because: (1) the Physicians Network is a “separate legal entity” from the

Cancer Center, (2) the Physicians Network is not a “governmental body,” and (3) the

Physicians Network’s Certified Member Program “is not the official business” of

the Cancer Center.

The Cancer Center has established that the Physicians Network is a “separate

legal entity” and not a “governmental body.” See id. § 552.003(1) (defining

“[g]overnmental body” (internal quotations omitted)). However, it has not

established that the Physicians Network is not connected to the transaction of official

business of the Cancer Center. Indeed, the reason for the existence of Texas

Government Code section 552.002(a)(2) is that sometimes “pubic information” may

be maintained by private entities. See, e.g., Adkisson, 459 S.W.3d at 767–75

(considering whether certain information in “private e-mail accounts” constituted

“public information” under PIA).

To support its assertion that the business of the Physicians Network’s

Certified Member Program “is not the official business” of the Cancer Center, the

Cancer Center relies on the testimony of Hay, its Vice President of Global Business

Development. In her affidavit, Hay did testify that the Physicians Network’s

primary purpose is to “provide quality improvement and best practices management

services to . . . community hospitals through [its] Certified Member Program,” the

24
Physicians Network directly “contracts and affiliates” with the community hospitals

which pay it a fee in exchange for the services it provides, the Cancer Center is not

a party to, does not receive fees or revenue from any of the Physicians Network’s

Certified Member Program contracts, and the Cancer Center is not a party to any

contracts between the Physicians Network and its consultants who provide services

in connection with the Certified Member Program. However, even though the

Cancer Center is not a party to the contracts between the Physicians Network, the

third-party community hospitals, and the consultants, there is still evidence in the

record that the administration of the Certified Member Program may constitute the

“[o]fficial business” of the Cancer Center. See TEX. GOV’T CODE ANN.

§ 552.003(2-a) (defining “[o]fficial business” (internal quotations omitted)).

First, MD Anderson Services Corporation’s “Form 990” tax return, attached

to Fallon’s summary-judgment motion, identifies the Cancer Center as the

“controlling entity” of the Physicians Network. And if the Cancer Center controls

the Physicians Network, then the Cancer Center may have some “authority” over the

programs that the Physicians Network administers, including the Certified Member

Program. See id.

Second, the Physicians Network’s Amended and Restated Certificate of

Formation, which Fallon attached to his summary-judgment motion, states that the

Physicians Network’s “sole [m]ember” is the president of the Cancer Center. The

25
“[s]ole member” has the “right, power, and authority to amend” the Physicians

Network’s Certificate of Formation. And by appointing the Cancer Center’s

president as the Physicians Network’s “sole [m]ember,” the Physicians Network’s

Amended and Restated Certificate of Formation may indicate that the Cancer Center

has some indirect control over the Physicians Network, even though the Network’s

independent board of directors still has control over the “direction and management

of [the Physician Network’s] affairs” and the “disposition of its properties and

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

be formed with members or without members), 22.161 (member of non-profit

corporation may be entitled to vote at election of directors), 22.351 (“A member of

a corporation, on written demand stating the purpose of the demand, is entitled to

examine and copy at the member’s expense, in person or by agent, accountant, or

attorney, at any reasonable time and for a proper purpose, the books and records of

the corporation relevant to that purpose.”); see also TEX. GOV’T CODE ANN.

§ 552.003(2-a).

Third, the various pages from the Cancer Center’s website referenced by

Fallon show that there are Cancer Center administrative staff who have

administrative or advisory duties over the Physicians Network. See TEX. GOV’T

CODE ANN. § 552.003(2-a). For example, the Cancer Center employs (1) an

Executive Vice President for Administration, who “provides executive oversight”

26
for the Physicians Network, (2) a Senior Vice President, who “provides leadership

for a team focused on engaging community hospitals and health care systems across

the nation and around the world with the goal of improving the quality of cancer care

in those communities,” and (3) a Vice President of Operations, who “is responsible

for all clinical operations provided to partners at a network of national locations.”

These three pieces of evidence, i.e., the “Form 990” tax return, the Amended

and Restated Certificate of Formation, and the Cancer Center’s website, raise a

genuine issue of material fact as to whether the Cancer Center has “authority,

administrative duties, or advisory duties” over the Physicians Network’s Certified

Member Program, thereby indicating that the administration of the Certified

Member Program may constitute the Cancer Center’s “[o]fficial business” under the

PIA. See id.; see also Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

221, 227–28 (Tex. 2004). Thus, we conclude that the Cancer Center has not

established, as a matter of law, that the information responsive to Fallon’s public

information request that is possessed by the Physicians Network is not “in

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

GOV’T CODE ANN. § 552.002(a).

Next, we consider whether the Cancer Center proved, as a matter of law, that

the Physicians Network does not maintain responsive information “for” the Cancer

Center. See id. § 552.002(a)(2).

27
According to the Cancer Center, Hay’s testimony in her affidavit shows that

the responsive information possessed by the Physicians Network is not maintained

“for” the Cancer Center; rather, it is maintained “for” the Physicians Network, itself,

and the third-party community hospitals and consultants with whom the Physicians

Network contracts and affiliates as part of the Certified Member Program.

In her affidavit testimony, Hay establishes two basic facts: (1) the Physicians

Network and the Cancer Center are “separate legal entit[ies]” and (2) the Cancer

Center is not a party to and does not receive fees or revenue from any of the

Physicians Network’s Certified Member Program contracts. However, the fact that

the Cancer Center and the Physicians Network are separate legal entities does not

mean that the Physicians Network does not maintain responsive information “for”

the Cancer Center. See id. As previously stated, “public information” may

sometimes be maintained by private entities. See, e.g., Adkisson, 459 S.W.3d at

767–75. And even though the Cancer Center is not a party to, and does not receive

fees and revenue from the Certified Member Program contracts, there is evidence

that the Physicians Network enters into those contracts and ultimately administers

the Certified Member Program “for” the Cancer Center. For instance, the Amended

and Restated Certificate of Formation states that the Physicians Network “is to be

administered solely for the benefit of [t]he . . . Cancer Center . . . by providing,

directly or indirectly, assistance and benefit, financial or otherwise, to the [Cancer

28
Center] through whatever means are determined by the [b]oard of [d]irectors,

including, but not limited to, making distributions or providing services.” And this

provision indicates that the Certified Member Program contracts may be benefiting

the Cancer Center “indirectly” by furthering the Cancer Center’s mission of

preventing and treating cancer. Further, it stands to reason that if the Physicians

Network is administered “solely” for the Cancer Center’s “benefit,” then the

Physicians Network’s programs, including the Certified Member Program, may be

administered for the Cancer Center’s benefit as well.

Notwithstanding the express language of the Amended and Restated

Certificate of Formation, the Cancer Center asserts that the Physicians Network

cannot be characterized as administering the Certified Member Program “for” the

Cancer Center. Relying on an opinion issued by the Austin Court of Appeals, which,

in turn, relies on an opinion of the Texas Attorney General,15 the Cancer Center

asserts that a private entity maintains information “for” a “governmental body” only

when the private entity maintains the information “on behalf of,” “at the request of,”

or “under the direction of” the “governmental body.” (Internal quotations omitted.)

See Murphy v. City of Austin, No. 03-04-00332-CV, 2005 WL 309203, at *3 (Tex.

15
See id. § 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.) (due consideration may be given to the Attorney
General’s PIA decisions, but they are not binding).

29
App.—Austin Feb. 10, 2005, no pet.) (mem. op.) (quoting Tex. Att’y Gen.

OR1987-462). The Cancer Center further argues that the Physicians Network does

not maintain responsive information “for” the Cancer Center because it did not

request or direct the Physicians Network to administer the Certified Member

Program. See id.

Although there is no evidence that the Cancer Center specifically

“request[ed]” or “direct[ed]” the Physicians Network to administer the Certified

Member Program,16 the Amended and Restated Certificate of Formation constitutes

evidence that the Physicians Network nevertheless administers the program on

behalf of the Cancer Center. To the extent that Murphy can be read as supporting a

narrower understanding of when a private entity acts “on behalf of” a “governmental

body,” we respectfully reject such a reading, as it conflicts with the statutory

mandate that the PIA be “liberally construed” in favor of disclosure and it ignores

subsequent amendments to the statute’s definition of public information. See TEX.

GOV’T CODE ANN. § 552.001(a), (b); see also Act of May 24, 2013, 83rd Leg., R.S.,

ch. 1204, §§ 1–2, secs. 552.002(a-1), 552.003(2-a), 2013 Tex. Gen. Laws 3012,

3012–13 (codified at TEX. GOV’T CODE ANN. §§ 552.002(a-1), 552.003(2-a)).

16
We note, however, that MD Anderson Services Corporation’s “Form 990” tax return
does state that the Cancer Center is the “controlling entity” of the Physicians
Network, and this constitutes some evidence that the Physicians Network may
administer the Certified Member Program under the general direction of the Cancer
Center.

30
Notably, these amendments added provisions that broadly define the circumstances

under which information is “in connection with the transaction of official business.”

TEX. GOV’T CODE ANN. § 552.002(a-1), see also id. § 552.003(2-a). And they

underscore the notion that the PIA’s terms should be broadly construed when doing

so would further the PIA’s policy of favoring disclosure.

Accordingly, we conclude that Fallon has raised a genuine issue of material

fact as to whether the Physicians Network maintains information responsive to

Fallon’s public information request “for” the Cancer Center, and the Cancer Center

has not established, as a matter of law, that the Physicians Network does not maintain

responsive information “for” the Cancer Center. See id. § 552.002(a)(2); see also

Miranda, 133 S.W.3d at 221, 227–28.

Finally, we consider whether the Cancer Center proved, as a matter of law,

that it does not have a “right of access” to the responsive information maintained by

the Physicians Network. See TEX. GOV’T CODE ANN. § 552.002(a)(2)(B). The

Cancer Center argues that it does not have a “right of access” to the information

responsive to Fallon’s public information request because (1) the Physicians

Network is a “separate legal entity” and (2) the Cancer Center is not a party to, and

does not receive fees or revenue from, any of the Physicians Network’s Certified

Member Program contracts.

31
As discussed above, however, there is evidence indicating that, despite these

facts, the Cancer Center has a “right of access” to the responsive information

maintained by the Physicians Network. This evidence includes MD Anderson

Services Corporation’s “Form 990” tax return and the Physicians Network’s

Amended and Restated Certificate of Formation. As previously noted, the “Form

990” tax return states that the Cancer Center is the “controlling entity” of the

Physicians Network. And the Amended and Restated Certificate of Formation states

that the Cancer Center’s president is the “sole [m]ember” of the Physicians Network

with the “right, power, and authority to amend” the Physicians Network’s Certificate

of Formation. Further, as the Physicians Network’s “sole [m]ember,” the Cancer

Center’s president has a right to examine, and, thus, a “right of access” to the

Physicians Network’s books and records. See TEX. BUS. ORGS. CODE ANN. § 22.351.

If the Cancer Center has some control over the Physicians Network, and the Cancer

Center’s president serves as the Physicians Network’s “sole [m]ember” with the

“right, power, and authority to amend” the Physicians Network’s Certificate of

Formation and the right to examine the Physicians Network’s books and records, it

follows that the Cancer Center may have a “right of access” to information in the

Physicians Network’s possession, both directly and indirectly, through the Cancer

Center’s president. Although the Cancer Center asserts that “[t]he existence of a

relationship between a governmental body and a separate legal entity does not itself

32
establish a specific right of access to [the] particular documents,” the “Form 990”

tax return and Amended and Restated Certificate of Formation establish more than

a mere “relationship” between the Cancer Center and the Physicians Network.

Rather, the evidence tends to show that the Cancer Center has a “right of access” to

the information that is responsive to Fallon’s public information request and that is

also in the possession of the Physicians Network.

Thus, we conclude that Fallon has raised a genuine issue of material fact as to

whether the Cancer Center has a “right of access” to the information responsive to

Fallon’s public information request that is in the Physicians Network’s possession

and the Cancer Center has not established, as a matter of law, that it does not have a

“right of access” to the responsive information maintained by the Physicians

Network. See TEX. GOV’T CODE ANN. § 552.002(a)(2)(B); see also Miranda, 133

S.W.3d at 221, 227–28.

In sum, the Cancer Center has not conclusively proved that the information

responsive to items 4-9 of Fallon’s public information request and that is in the

Physicians Network’s possession is not “public information” under the PIA. See

TEX. GOV’T CODE ANN. § 552.002(a) (internal quotations omitted). Accordingly,

we hold that the trial court erred in granting the Cancer Center’s plea to the

jurisdiction related to Fallon’s suit for a writ of mandamus to compel the Cancer

33
Center to produce information responsive to his public information request. See id.

§ 552.321 (“Suit for Writ of Mandamus”).

We sustain Fallon’s second issue.

Fallon’s first issue, in which he globally questions whether “a governmental

body [can] conceal public information from public inspection by conducting official

business through an ostensibly separate but . . . affiliated non-profit organization” is

subsumed in our discussion of his second and third issues and needs not be addressed

separately. See TEX. R. APP. P. 47.1.

Further, we note that, in the prayer for relief portion of his original brief,

Fallon requests that we reverse the trial court’s order denying his motion to compel

and granting the Cancer Center’s motion for protective order. However, Fallon does

not raise any issue or present any argument directly addressing any alleged error in

regard to the trial court’s denial of his motion to compel or its granting of the Cancer

Center’s motion for protective order. To the extent that Fallon attempts to seek such

relief, we hold that any issues are inadequately briefed and that Fallon has waived

any complaints related to the trial court’s denial of his motion to compel or its

granting of the Cancer Center’s motion for protective order.17 See TEX. R. APP. P.

17
In his reply brief, Fallon asserts that he has not waived any complaint regarding the
trial court’s order related to his motion to compel and the Cancer Center’s motion
for protective order. And he states that if “the Court renders judgment for [him],
the protective order is . . . a nullity” and if “the Court reverses the plea to the
jurisdiction and remands [the case] to the trial court, the protective order must be
34
38.1; CEVA Logistics U.S., Inc. v. Acme Truck Line, Inc., No. 01-16-00482-CV,

2018 WL 6694606, at *4 n.10 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no

pet.) (mem. op.) (appellant waived complaint regarding alleged error where it did

not present any issue or argument directly addressing error and only attempted to

raise complaint in its prayer); Washington v. Bank of N.Y., 362 S.W.3d 853, 854–55

(Tex. App.—Dallas 2012, no pet.) (party who does not adequately brief complaint

on appeal waives his issue); Dove v. Graham, 358 S.W.3d 681, 685 (Tex. App.—

San Antonio 2011, pet. denied) (complaint inadequately briefed where appellant

only requested that appellate court “reverse the trial court’s order granting

the . . . motion to sever” in her prayer and provided no argument or authority to

support her request).

vacated.” The Texas Rules of Appellate Procedure do not allow the inclusion of a
new issue in a reply 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. 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). And even if
not a “new issue,” Fallon does not provide the Court with any appropriate analysis,
discussion, or support for his assertions that the trial court erred in denying his
motion to compel and granting the Cancer Center’s motion for protective order. See
TEX. R. APP. P. 38.1(i); Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57,
75 (Tex. App.—San Antonio 2011, no pet.) (conclusory statements are not sufficient
and failure to provide substantive analysis of issue or cite appropriate authority
waives complaint on appeal). A party who does not adequately brief a complaint
on appeal waives his issue. Washington v. Bank of N.Y., 362 S.W.3d 853, 854–55
(Tex. App.—Dallas 2012, no pet.); see also Fredonia State Bank v. Gen. Am. Life
Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994); Strange v. Cont’l Cas. Co., 126
S.W.3d 676, 677–78 (Tex. App.—Dallas 2004, pet. denied) (appellate court cannot
remedy deficiencies in appellant’s brief and argue his case for him).

35
Declaratory Judgment

In his fourth issue, Fallon argues that the trial court erred in dismissing his

declaratory-judgment claim because the Cancer Center never filed a plea to the

jurisdiction or other motion seeking dismissal of the claim for lack of subject-matter

jurisdiction. Fallon further argues that, even if the Cancer Center had properly raised

the issue, the trial court still erred in dismissing his claim because both the DJA and

PIA waive sovereign immunity when, as here, a party, who has submitted a public

information request under the PIA, files a separate claim against the “governmental

body” seeking a declaration that the information requested constitutes “public

information” under the PIA.

Whether a court has jurisdiction is a threshold inquiry that can be addressed

by the court sua sponte and at any time. See Heckman v. Williamson Cty., 369

S.W.3d 137, 146 n.14 (Tex. 2012); James v. Underwood, 438 S.W.3d 704, 708 (Tex.

App.—Houston [1st Dist.] 2014, no pet.); see also Holcomb v. Waller Cty., 546

S.W.3d 833, 837 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (“A court must

assure itself that there is jurisdiction to hear a suit.”); DeWolf v. Kohler, 452 S.W.3d

373, 382 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“A court is obliged to

determine whether it has subject-matter jurisdiction and must consider the question

sua sponte even if it is not challenged by a party.”). Thus, the Cancer Center did not

need to file a plea to the jurisdiction or any motion for the trial court to consider

36
whether it has jurisdiction over Fallon’s declaratory-judgment claim. See DeWolf,

452 S.W.3d at 382–83 (affirming trial court’s sua sponte dismissal of claims for lack

of subject-matter jurisdiction); James, 438 S.W.3d at 708. Whether the trial court

has subject-matter jurisdiction is a question of law that we review de novo. Miranda,

133 S.W.3d at 226; Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d

849, 855 (Tex. 2002).

Sovereign immunity and its counterpart, governmental immunity, exist to

protect the State and its political subdivisions from lawsuits and liability for money

damages.18 Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.

2008); IT–Davy, 74 S.W.3d at 853. Absent an express waiver of sovereign or

governmental immunity, courts do not have subject-matter jurisdiction over suits

against the State or its subdivisions. State v. Shumake, 199 S.W.3d 279, 283 (Tex.

2006); Miranda, 133 S.W.3d at 224–25.

In his third amended petition, Fallon, related to his declaratory-judgment

claim, sought a declaration that the information that he requested from the Cancer

18
Although the terms “sovereign immunity” and “governmental immunity” are often
used interchangeably, sovereign immunity “extends to various divisions of state
government, including agencies, boards, hospitals, and universities,” while
governmental immunity “protects political subdivisions of the State, including
counties, cities, and school districts.” See Ben Bolt–Palito Blanco Consol. Indep.
Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self–Ins. Fund, 212 S.W.3d
320, 324 (Tex. 2006); Odutayo v. City of Hous., No. 01-12-00132-CV, 2013 WL
1718334, at *2 n.8 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem.
op.).

37
Center constitutes “public information” under the PIA. See James, 438 S.W.3d at

708 (“The determination of whether a trial court has subject-matter jurisdiction

begins with the pleadings.”).

The DJA gives Texas courts the power to “declare rights, status, and other

legal relations whether or not further relief is or could be claimed.” TEX. CIV. PRAC.

& REM. CODE ANN. § 37.003(a). And it provides:

A person interested under a deed, will, written contract, or other
writings constituting a contract or whose rights, status, or other legal
relations are affected by a statute, municipal ordinance, contract, or
franchise may have determined any question of construction or validity
arising under the instrument, statute, ordinance, contract, or franchise
and obtain a declaration of rights, status, or other legal relations
thereunder.

See id. § 37.004(a). Notably though, the DJA does not provide a general waiver of

sovereign immunity. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384,

388 (Tex. 2011); Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex.

2011); Tex. Dep’t of Ins. v. Green, No. 01-15-00321-CV, 2016 WL 2745063, at *3

(Tex. App.—Houston [1st Dist.] May 10, 2016, pet. denied) (mem. op.) (“[T]he

[]DJA waiver of sovereign immunity is narrow.” (internal quotations omitted)).

Instead, it provides a limited waiver of sovereign immunity for a claim that

challenges the validity or constitutionality of a statute and an ordinance. See TEX.

CIV. PRAC. & REM. CODE ANN. § 37.006(b); Sefzik, 355 S.W.3d at 621–22; City of

El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009); Green, 2016 WL

38
2745063, at *3. Here, Fallon does not seek a declaration concerning the PIA’s

validity or constitutionality. Instead, he seeks a declaration that construes the PIA

and his rights thereunder. Such claims are generally barred as the DJA does not

waive sovereign immunity for them. See Sefzik, 355 S.W.3d at 621 (“[T]he []DJA

does not waive the [S]tate’s sovereign immunity when [a] plaintiff seeks a

declaration of his . . . rights under a statute or other law.”); City of New Braunfels v.

Carowest Land, Ltd., 549 S.W.3d 163, 170–71 (Tex. App.—Austin 2017, pet. filed);

Green, 2016 WL 2745063, at *3.

We note that Fallon relies on various cases to support his assertion that the

DJA waives sovereign immunity for a claim that seeks a declaration of rights under

the PIA. See City of Garland, 22 S.W.3d at 357–58; Tex. Educ. Agency v. Leeper,

893 S.W.2d 432 (Tex. 1994); Town of Shady Shores v. Swanson, 544 S.W.3d 426

(Tex. App.—Fort Worth 2018, pet. granted); Kessling v. Friendswood Indep. Sch.

Dist., 302 S.W.3d 373 (Tex. App.—Houston [14th Dist.] 2009, pet. denied);

Labrado v. Cty. of El Paso, 132 S.W.3d 581 (Tex. App.—El Paso 2004, no pet.);

Hays Cty. v. Hays Cty. Water Planning P’ship, 106 S.W.3d 349 (Tex. App.—Austin

2003, no pet.); Thomas v. Cornyn, 71 S.W.3d 473 (Tex. App.—Austin 2002, no

pet.); Dominguez v. Gilbert, 48 S.W.3d 789 (Tex. App.—Austin 2001, no pet.); El

Paso Cty. Hosp. Dist. v. Gilbert, 64 S.W.3d 200 (Tex. App.—El Paso 2001, pet.

denied).

39
However, all but one of these cases were decided before the Texas Supreme

Court issued its opinion in Sefzik, which clarified that (1) governmental bodies are

immune from suits under the DJA unless the Legislature has waived immunity for

the particular claim at issue and (2) the DJA does not waive the state’s sovereign

immunity when a plaintiff seeks a declaration of his rights under a statute or other

law. 355 S.W.3d at 620–21. Further, the single case, Swanson, which was issued

by the Fort Worth Court of Appeals after the Supreme Court’s decision in Sefzik,

does not support Fallon’s position. Instead, Swanson stands for the proposition that,

when, as here, a plaintiff sues a governmental entity for a declaration of rights under

a statute or other law, that plaintiff must establish a waiver of immunity from some

source other than DJA, as the DJA provides no general waiver of immunity. 544

S.W.3d at 436–37 (“The [governmental entity] next argues that the []DJA does not

waive governmental immunity when a plaintiff . . . seeks a declaration of her rights

under a statute or other law. On this point, the [governmental entity] is correct.”).

In Swanson, the trial court affirmed the trial court’s denial of the governmental

entity’s plea to the jurisdiction related to the plaintiff’s declaratory-judgment claim

because the plaintiff established a waiver of the immunity under an alternative

source, i.e., the Texas Open Meetings Act. Id. at 437. Here, by contrast, Fallon has

failed to show that the PIA (or any other source) waives sovereign immunity for

Fallon’s declaratory-judgment claim against the Cancer Center. Indeed, contrary to

40
Fallon’s position in the instant case, since Sefzik, courts have held that sovereign

immunity bars a declaratory-judgment claim that seeks a declaration of rights under

the PIA. See, e.g., McLane Co. v. Tex. Alcoholic Beverage Comm’n, 514 S.W.3d

871, 874–76 (Tex. App.—Austin 2017, pet. denied) (affirming trial court’s dismissal

of declaratory-judgment claim seeking declaration of rights under PIA); see also

Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696, 706–09

(Tex. App.—Austin 2013, no pet.).

Based on the foregoing, we conclude that Fallon has failed to plead a

declaratory-judgment claim over which the trial court has jurisdiction. See James,

438 S.W.3d at 708 (plaintiff has burden to plead facts affirmatively showing trial

court has jurisdiction). Accordingly, we hold that the trial court did not err in

dismissing Fallon’s declaratory-judgment claim for lack of subject-matter

jurisdiction. Although a plaintiff generally deserves a reasonable opportunity to

amend a defective pleading, where, as here, the pleading demonstrates an incurable

defect or negates the existence of jurisdiction, the plaintiff need not be afforded an

opportunity to amend. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,

839–40 (Tex. 2007); James, 438 S.W.3d at 708–09.

We overrule Fallon’s fourth issue.

41
Conclusion

We reverse the portion of the trial court’s order granting the Cancer Center’s

plea to the jurisdiction related to Fallon’s suit for a writ of mandamus to compel the

Cancer Center to produce information responsive to his public information request.

We affirm the portions of the trial court’s order dismissing Fallon’s

declaratory-judgment claim and the trial court’s order denying Fallon’s motion for

summary judgment. We remand the case to the trial court for further proceedings

consistent with this opinion.

Julie Countiss
Justice

The original panel consisted of Justices Jennings, Higley, and Massengale.

En banc reconsideration was requested. TEX. R. APP. P. 49.7.

The en banc court consists of Chief Justice Radack and Justices Keyes, Higley,
Lloyd, Kelly, Goodman, Landau, Hightower, and Countiss.

The en banc court has unanimously voted in favor of reconsidering the case en banc.

Justice Countiss, writing for the en banc court.

42

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4433893. Public record. Not legal advice.