City of Houston v. Randall Kallinen

Opinion

ACCEPTED

01-12-00050-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/9/2015 5:34:23 PM

CHRISTOPHER PRINE

CLERK

No. 01-12-00050-CV

FILED IN

______________________________________________________________

1st COURT OF APPEALS

HOUSTON, TEXAS

12/9/2015 5:34:23 PM

In the Court of Appeals for the CHRISTOPHER A. PRINE

First District of Texas at Houston Clerk

______________________________________________________________

CITY OF HOUSTON,

Appellant

V.

RANDALL KALLINEN AND PAUL KUBOSH, Appellees

______________________________________________________________

On Appeal from the 295th District Court of Harris County, Texas Trial Court Cause No. 2008-75633 Honorable Caroline Baker, Presiding Judge

______________________________________________________________

Supplemental Brief of Appellant

______________________________________________________________

Donna L. Edmundson Fernando De Leon City Attorney Senior Assistant City Attorney SBN: 24025325

Judith L. Ramsey CITY OF HOUSTON LEGAL Chief, General Litigation Section DEPARTMENT 900 Bagby Street, 4th Floor Houston, Texas 77002

832.393.6491 (telephone)

832.393.6259 (facsimile)

fernando.deleon2@houstontx.gov

Attorneys for Appellant

Oral Argument Requested

Identity of Parties and Counsel Appellant: Trial & Appellate Counsel:

City of Houston Judith L. Ramsey Fernando De Leon

CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby Street, 4th Floor Houston, Texas 77002

832.393.6491 (telephone)

832.393.6259 (facsimile)

judith.ramsey@houstontx.gov fernando.deleon2@houstontx.gov

Appellees: Trial & Appellate Counsel:

Randall Kallinen Joseph R. Larsen and Paul Kubosh SEDGWICK LLP 1200 Smith Street, Suite 1600 Houston, Texas 77002

832.426.7020 (telephone)

877.527.1451 (facsimile)

joseph.larsen@sedgwicklaw.com

David A. Furlow

LAW OFFICE OF DAVID A. FURLOW, P.C.

4126 Rice Boulevard

Houston, Texas 77005

713.202.3931 (telephone)

866.382.0147 (facsimile)

dafurlow@gmail.com

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Table of Contents

Page

Identity of Parties and Counsel ..................................................................... ii

Index of Authorities ................................................................................... vii Record and Appendix Reference Key ........................................................... x

Statement of the Case .................................................................................. xi

Statement Regarding Oral Argument .......................................................... xii Issues Presented ......................................................................................... xii

Introduction and Overview........................................................................... 1 Statement of Facts........................................................................................ 2 A. Only Kallinen submits TPIA Requests to City............................. 2 B. City releases 82% of requested documents. .................................. 2 C. Appellees sue City. .................................................................... 3

D. Appellees ensure Attorney General does not rule on City’s proper request. ........................................................................... 4

E. Trial court grants partial summary judgment to Appellees;

City releases all documents held not excepted from disclosure. ................................................................................. 4

F. Trial court holds attorney fees hearing; enters final judgment for Appellees. ............................................................................ 5

G. City files plea and new trial motion contesting jurisdiction and fee award. ........................................................................... 6

H. Trial court modifies judgment, dismisses Kubosh, awards fees only to Kallinen .................................................................. 6

I. This Court rules for City; Texas Supreme Court disagrees. .......... 8

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Summary of Argument................................................................................. 8 Argument .................................................................................................. 11

I. The trial court erred by denying the City’s plea and otherwise had no subject-matter jurisdiction over Appellees’ claims. ......................... 11

A. The trial court had no subject-matter jurisdiction because Appellees’ TPIA mandamus and attorney fee claims were not justiciable. ......................................................................... 11

1. Appellees’ TPIA mandamus and attorney fee claims were no longer justiciable at the time of final judgment because they were mooted when the City, prior to final judgment, produced all withheld documents that the trial court ordered the City to disclose. ....................... 11

2. As a result, the trial court had no subject-matter jurisdiction because Appellees’ TPIA mandamus and attorney fee claims were not justiciable at the time of final judgment. ............................................................... 13

B. The trial court also had no subject-matter jurisdiction because all Appellees’ claims are barred by immunity. ............... 15

1. Appellees’ TDJA claims are barred by immunity because they are redundant and duplicative of their TPIA claims. .................................................................. 15

2. Appellees’ TPIA mandamus claims are also barred by immunity because the TPIA does not waive the City’s immunity and the only proper defendant for such claims is the pertinent public information officer. ............. 17

3. Appellees’ TDJA claims are likewise barred by immunity because the TDJA also does not waive the City’s immunity and the only proper defendant for such claims is the pertinent public information officer. ..... 20 4. As a result, the trial court also had no subject-matter jurisdiction because all Appellees’ claims are barred by immunity. ...................................................................... 21

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II. The trial court erred by awarding attorney fees to Appellees because there was no evidence or insufficient evidence to support any award of fees to them. ................................................................. 22

A. Kallinen was not entitled to any award of attorney fees because he did not actually incur any attorney fees—as Kubosh incurred all the claimed fees. ........................................ 22

B. Appellees were not entitled to any award of attorney fees because they failed to properly segregate recoverable (alleged) fees from non-recoverable (alleged) fees. ..................... 24

C. Appellees offered no evidence or insufficient evidence to support the amount of the award of attorney fees. ..................... 25 III. The trial court also had no subject-matter jurisdiction over Kubosh’s claims; Kubosh’s TPIA mandamus and attorney fee claims were never justiciable due to lack of ripeness and standing because he never submitted any TPIA request to the City. .................. 28

Conclusion and Prayer ............................................................................... 29 Certificate of Compliance ........................................................................... 30 Certificate of Service .................................................................................. 31 Appendix

A. Order on Plaintiffs’ Summary Judgment (dated October 12, 2009)

(CR.582)

B. Order Granting Plaintiffs’ Motion for Partial Summary Judgment and No-Evidence Partial Motion for Summary Judgment on Conceded Documents (dated October 12, 2009) (CR.583-85)

C. Order (dated December 8, 2009) (CR.931-32)

D. Order on City’s Motion to Strike Paul Kubosh (dated March 1, 2010) (CR.969)

E. Final Judgment (dated October 12, 2011) (CR.1094-95)

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F. Order (dated January 5, 2012) (CR.1208) G. Amended Final Judgment (dated July 12, 2012) (CR[2].17-18) H. First Court of Appeals Judgment and Opinion (dated August 29, 2013)

I. Supreme Court Judgment and Opinion (dated March 20, 2015) J. Order for Supplemental Briefing On Remand

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Index of Authorities

Page(s)

Cases

A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668 (Tex. 1995) ................................................................... 18

BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838 (Tex. 1990) ................................................................... 16

Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995) ................................................................... 15

Chenault v. Phillips, 914 S.W.2d 140 (Tex. 1996) ................................................................... 15

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) ........................................................ 18, 19, 20

City of Houston v. Kallinen, 414 S.W.3d 815 (Tex. App.—Houston [1st Dist.] 2013), rev’d, 462 S.W.3d 25 (Tex. 2015) ............................................................................ xi

City of Houston v. Texan Land & Cattle Co., 138 S.W.3d 382 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ............ 16

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299 (Tex. 2008) ................................................................... 14

Guthrie v. Garcia, 352 S.W.3d 307 (Tex. App.—Houston [14th Dist.] 2011, no pet.) . 18, 19, 20

Int’l Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650 (Tex. 2009) ................................................................... 12

Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290 (Tex. 2011) ........................................................ 16, 17, 23

Kallinen v. City of Houston, 462 S.W.3d 25 (Tex. 2015)...................................................................... xi

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M.D. Anderson Cancer Center v. Novak, 52 S.W.3d 704 (Tex. 2001)..................................................................... 13

MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660 (Tex. 2009) ................................................................... 16

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) ................................................................... 21

Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69 (Tex. 2015)..................................................................... 16

Patterson v. Planned Parenthood of Houston, 971 S.W.2d 439 (Tex. 1998) ................................................................... 14

Rapid Settlements, Ltd. v. Settlement Funding, LLC, 358 S.W.3d 777 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ............ 24

Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) ................................................................... 21

State Bar of Tex. v. Gomez, 891 S.W.2d 243 (Tex. 1994) ................................................................... 14

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) ........................................................ 13, 14, 15

Tex. Dep’t of State Health Servs. v. Holmes, 294 S.W.3d 328 (Tex. App.—Austin 2009, pet. denied) .......................... 20

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636 (Tex. 1999) ...................................................................... 21

Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002)..................................................................... 21

Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.)................. 11, 12, 13, 16

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) ................................................................... 24

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Williams v. Lara, 52 S.W.3d 171 (Tex. 2000)................................................................ 14, 15

Constitution and Statutes Tex. Const. art. XI, § 5 ................................................................................. x

Tex. Gov’t Code § 311.034 ......................................................................... 21 Tex. Gov’t Code § 552.003 .................................................................... 18, 28 Tex. Gov’t Code § 552.221 ......................................................................... 17

Tex. Gov’t Code § 552.321 .................................................................... 18, 28 Tex. Gov’t Code § 552.323 .............................................................. 11, 22, 26

Tex. Loc. Gov’t Code § 9.008 ....................................................................... x

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Record and Appendix Reference Key All record and appendix items are cited as follows:

“CR.[page]” Clerk’s Record (filed January 26, 2012).

“CR[1].[page]” 1st Supplemental Clerk’s Record (filed June 6, 2012).

“CR[2].[page]” 2nd Supplemental Clerk’s Record (filed August 17, 2012).

“CR[3].[page]” 3rd Supplemental Clerk’s Record (filed April 12, 2013).

“CR[4].[page]” [4th] Supplemental Clerk’s Record (filed June 5, 2013, but without designation as the “4th”

supplement).

“RR[1].[page]” Reporter’s Record of October 6, 2010 trial court hearing on Appellees’ attorney fee claim.

“RR[2].[page]” Reporter’s Record of the December 12, 2011 trial court hearing on the City of Houston’s motion for new trial and plea to the jurisdiction.

“Ex. [number or letter]” Exhibits to a specified Reporter’s Record. “App. [letter]” Items in the attached Appendix.

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Statement of the Case

Nature of the case: Randall Kallinen [Kallinen] and Paul Kubosh [Kubosh] sued the City of Houston [City]1 seeking mandamus relief under the Texas Public Information Act [TPIA] to compel release of documents and declaratory relief under the Texas Declaratory Judgment Act [TDJA] to declare that release is required. CR.2-8, 30-38.

Course of proceedings: Kallinen and Kubosh [Appellees] filed a motion for partial summary judgment. CR.648-54. On October 12, 2009, the trial court granted in part and denied in part Appellees’ motion and ordered the City to disclose certain documents. CR.582-85; App. A;

App. B. On October 12, 2011, the court entered a final judgment reiterating its summary judgment ruling and awarding attorney fees to Appellees jointly. CR.1094-95; App. E.

The City filed a motion for new trial and plea to the jurisdiction. CR.1103-47. On January 5, 2012, the trial court denied the City’s plea and granted in part and denied in part the City’s motion. CR.1208;

App. F.2

1 The City is a Texas home-rule city operating under a municipal charter pursuant to Article XI, Section 5, of the Texas Constitution. See Tex. Const. art. XI, § 5. In accordance with Section 9.008(b) of the Texas Local Government Code, the City respectfully requests this Court to take judicial notice of its published charter and status thereunder as a home-rule city. See Tex. Loc. Gov’t Code § 9.008(b). 2 In its original brief in this appeal (prior to the Supreme Court’s ruling), the City addressed issues relating to the trial court’s original final judgment in an abundance of caution given that it did learn that the trial court entered a modified final judgment until the day it filed its original appeal brief. Although the modified final judgment is at issue here, the City addresses issues relating to Kubosh also in an abundance of caution in the event that this Court’s September 3, 2015 order (App. J) allowing supplemental briefing by the parties does not contemplate the filing of a responsive brief by the City to Appellees’ supplemental brief. In addition, for the same reason, to the extent that any of the City’s arguments as to Kallinen also apply to Kubosh, the City addresses those arguments as to Appellees.

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Trial court disposition: On July 12, 2012, the trial court entered a modified final judgment dismissing Kubosh due to lack of standing and awarding attorney fees only to Kallinen. CR[2].17-18; App. G. The City timely appealed. CR.1213-14; CR[5].29-30.

Prior judgments by this This Court reversed the trial court’s order denying Court and Supreme the City’s plea and rendered judgment dismissing Court: Appellees’ claims against the City for want of jurisdiction. See City of Houston v. Kallinen, 414 S.W.3d 815 (Tex. App.—Houston [1st Dist.] 2013), rev’d, 462 S.W.3d 25 (Tex. 2015); App. H. The Texas Supreme Court reversed this Court’s judgment and remanded to this Court for further proceedings in accordance with its opinion. See Kallinen v. City of Houston, 462 S.W.3d 25 (Tex. 2015); App. I.

Current procedural On September 3, 2015, this Court entered an order posture: allowing the parties to file supplemental briefing to aid this Court’s consideration of the issues on remand. App. J.

Statement Regarding Oral Argument The City respectfully requests that the Court hear oral argument in this appeal to allow the parties an opportunity to simplify and focus the issues for the Court’s consideration.

Issues Presented

The trial court erred in denying the City’s plea to the jurisdiction and motion for new trial for the following reasons:

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1. The trial court had no subject-matter jurisdiction over Appellees’ claims.

a. The trial court had no subject-matter jurisdiction over Appellees’ TPIA mandamus and attorney fee claims because they were no longer justiciable at the time of final judgment;

they were mooted when the City, prior to final judgment, produced to Kallinen all withheld documents that the trial court ordered the City to disclose.

b. The trial court also had no subject-matter jurisdiction because all Appellees’ claims are barred by immunity.

i. Appellees’ TDJA claims are barred by immunity because they are redundant and duplicative of their TPIA claims.

ii. Appellees’ TPIA mandamus claims are also barred by immunity because the TPIA does not waive the City’s immunity and the only proper defendant for such claims is the pertinent public information officer.

iii. Appellees’ TDJA claims are likewise barred by immunity because the TDJA likewise also does not waive the City’s immunity and the only proper defendant for such claims is the pertinent public information officer.

2. The trial court erred by awarding attorney fees to Appellees because there was no evidence or insufficient evidence to support any award of fees to them.

a. Kallinen was not entitled to any award of attorney fees because he did not actually incur any attorney fees—as Kubosh incurred all the claimed fees.

b. Appellees offered no evidence or insufficient evidence to support the amount of the award of attorney fees.

3. The trial court also had no subject-matter jurisdiction over Kubosh’s claims; Kubosh’s TPIA mandamus and attorney fee claims were never justiciable due to lack of ripeness and

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standing because he never submitted any TPIA request to the City.

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Introduction and Overview After the City released most of the documents that Kallinen requested relating to the City’s red light traffic camera system under the TPIA, Appellees sued the City seeking mandamus relief (as well as attorney fees) under the TPIA to compel disclosure of documents that the City withheld based on TPIA disclosure exceptions. They filed their suit against the City, not a City official. They also sought redundant and duplicative declaratory relief (as well as attorney fees) under the TDJA to declare that disclosure is required. Kubosh joined the suit despite the fact that only Kallinen submitted any TPIA request to the City.

In late 2009, the trial court ruled on the TPIA exceptions asserted by the City, and the City immediately complied by producing all documents that the trial court ruled were not excepted from disclosure. In late 2011, the trial court entered a final judgment which included an attorney fee award jointly to Appellees. Later, in mid-2012, after the City filed a motion for new trial and plea to the jurisdiction, the trial court entered modified final judgment dismissing Kubosh for lack of standing and awarding attorney fees only to Kallinen.3 But as a result of the City’s production of all documents that the trial

3 In its original brief in this appeal, given that it did not learn that the trial court entered a modified final judgment until the day it filed that brief, the City addressed issues relating to

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court ordered the City to disclose, Kallinen’s claims were all rendered moot prior to final judgment and he was entitled to no attorney fee award. As a result, all Kallinen’s claims should be dismissed for lack of subject matter jurisdiction and the fee award to him should be reversed and rendered in the City’s favor.

Statement of Facts

A. Only Kallinen submits TPIA Requests to City.

In November and December 2008, Kallinen submitted four email requests to the City pursuant to the TPIA requesting release of documents relating to the City’s red light traffic camera system. CR.41-48. Kubosh did not submit to the City any TPIA request for documents. CR.75, 194, 322, 607, 674, 746-47, 920, 1001; CR[1].139, 258, 262; RR[1].28, 54. Kallinen’s requests did not mention or reference Kubosh. CR.41-48. B. City releases 82% of requested documents.

The City released approximately 3,235 pages of documents to Kallinen pursuant to his requests (about 82% of all responsive documents). CR.398,

the trial court’s original final judgment in an abundance of caution. Although the modified final judgment is at issue here, the City addresses issues relating to Kubosh also in an abundance of caution in the event that this Court’s September 3, 2015 order allowing supplemental briefing by the parties does not contemplate the filing of a reply brief by the City. In addition, for the same reason, to the extent that any of the City’s arguments as to Kallinen would also apply to Kubosh, the City addresses those arguments as to both.

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541-68, 586, 746, 825, 883, 890, 901, 908, 1054, 1071. The City withheld only about 700 pages of documents based primarily on TPIA disclosure exceptions for materials protected by the deliberative process privilege and attorney-client privilege. CR.398, 586, 746, 825, 883, 890, 901, 908, 1054, 1071. The City also timely requested a ruling by the Texas Attorney General on application of the exceptions. CR.75, 80, 81-83, 86-91, 194, 199-202, 205-10, 321, 326-29, 334- 39, 399, 421-27, 587, 607, 746-47, 867, 919-20, 1054, 1071. C. Appellees sue City.

On December 26, 2008, both Appellees sued the City seeking mandamus relief under the TPIA to compel disclosure of all the documents that Kallinen sought in his four requests to the City and declaratory relief under the TDJA to declare that disclosure is required. CR.2-8, 30-38. Appellees filed suit: (1) less than two weeks after Kallinen’s fourth request to the City, (2) before the City completed all its submissions to the Attorney General supporting TPIA exceptions for the withheld documents, (3) before the Attorney General had an opportunity to complete its review of the City’s submissions and issue its ruling, and (4) despite the fact that Kubosh never requested any documents from the City. CR.2-8, 30-38, 41-48, 75, 80-83, 86-91, 176-77, 194, 199-202, 205-10, 321, 326-29, 334-39, 341-42, 399, 421-27, 429-34, 587, 607, 746-47, 867, 919-20, 1054, 1071, 1110-11, 1135-36, 1139-42, 1186-87.

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D. Appellees ensure Attorney General does not rule on City’s proper request.

On January 30, 2009, Appellees (through their counsel) sent an email to the Attorney General’s office requesting that it decline to issue a ruling, despite the City’s proper request, based on the pendency of their recently-filed lawsuit against the City. CR.399, 428-30, 1110, 1135-36. On December 16, 2008, and January 8, 2008, the Attorney General sent letters to the City declining to issue any ruling and instead deferring to the trial court to decide whether the withheld documents were excepted from disclosure under the TPIA. CR.176- 77, 341-42, 399, 431-34, 1110-11, 1139-42, 1186-87.

E. Trial court grants partial summary judgment to Appellees; City releases all documents held not excepted from disclosure.

On September 14, 2009, Appellees filed a motion for partial summary judgment arguing that the withheld documents were not excepted from disclosure. CR.615, 648-54. On September 28, 2009, the City filed a response. CR.398-541. On October 2, 2009, Appellees filed a reply. CR.569-74. On October 12, 2009, the trial court entered two orders granting in part and denying in part Appellees’ motion for summary judgment and ordering the City to disclose some of the withheld documents. CR.582-85; App. A; App. B. The City then immediately disclosed to Appellees all withheld documents that the trial court ordered the City to disclose. CR.1104.

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F. Trial court holds attorney fees hearing; enters final judgment for Appellees.

On November 16, 2009, Appellees filed a motion for entry of judgment and award of attorney fees. CR.659-67. On December 3, 2009, the City filed a response. CR.882-920. On December 8, 2009, the trial court entered an order reiterating its October 12, 2009 ruling and stating that Appellees’ attorney fee claim would be heard at the January 2010 trial setting (which was postponed several times). CR.925, 931-32, 940-41; App. C.4 On November 20, 2009, the City filed a motion to strike Kubosh as a party-plaintiff on the ground that he has no standing to seek relief as a TPIA “requestor” because he never actually submitted to the City any request for documents. CR.746-50. On November 25, 2009, Appellees filed a response. CR.810-14. On December 30, 2009, Appellees filed a supplemental response. CR.935-37. On March 1, 2010, the trial court entered an order denying the City’s motion to strike Kubosh. CR.969; App. D.

On October 6, 2010, the trial court held a hearing on Appellees’ attorney fee claim against the City. RR[1]. On October 12, 2011, the court entered a

4 Judge Tracy Christopher presided over all trial court proceedings below until December 2009 when she was appointed as a Justice of the Fourteenth Court of Appeals. After Judge Christopher entered the December 8, 2009 order, Judge Caroline Baker presided over all subsequent trial court proceedings below.

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final judgment again reiterating its October 12, 2009 ruling and awarding attorney fees to Appellees jointly. CR.1094-95; App. E.

G. City files plea and new trial motion contesting jurisdiction and fee award.

On November 10, 2011, the City filed a motion for new trial and plea to the jurisdiction. CR.1103-47. On December 8, 2011, Appellees filed a response. CR.1151-61. On December 12, 2011, the trial court held a hearing on the City’s new trial motion and plea. RR[2]. On January 5, 2012, the court entered an order granting in part and denying in part the City’s new trial motion and denying the City’s plea. CR.1208; App. F. The court granted the City’s new trial motion only as to the attorney fee award to Kubosh and denied the remainder of the motion. CR.1208; App. F. The parties subsequently filed motions seeking clarification of the trial court’s ruling. CR[1].2-5, 44-122, 257- 60. But in an abundance of caution, on January 12, 2012, the City filed a notice of appeal. CR.1213-14.

H. Trial court modifies judgment, dismisses Kubosh, awards fees only to Kallinen

On March 9, 2012, Appellees filed a motion for reconsideration of the trial court’s ruling on the City’s new trial motion as to the award of attorney fees to Kubosh or (alternatively) for severance as to Kubosh so that the judgment as to Kallinen may become final and appealable. CR[1].2-5. On

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April 12, 2012, the City filed a response. CR[1].44-122. The City also filed a motion seeking (alternatively) entry of judgment awarding no attorney fees to any Appellee. CR[1].44-122. On May 4, 2012, Appellees filed a supplemental motion for reconsideration of the trial court’s ruling on the City’s new trial motion as to the award of attorney fees to Kubosh or (alternatively) for entry of an amended final judgment and order reflecting dismissal as to Kubosh. CR[1].257-60. On May 24, 2012, the City filed a response. CR[2].2.

On July 12, 2012, the trial court entered a modified final judgment ruling that Kubosh has no standing and awarding him no attorney fees. CR[2].17-18; App. G. On July 24, 2012, the City filed a request for findings of fact and conclusion of law. CR[2].19-20. On August 10, 2012, the City filed a motion for new trial as to the trial court’s amended final judgment. CR[2].21-33. On August 15, 2012, Appellees filed proposed findings of fact and conclusion of law. CR[2].36-41. On August 17, 2012, the City filed a notice of past due findings of fact and conclusion of law. CR[3].26-27.

On September 19, 2012, in an abundance of caution, the City filed another notice of appeal as to the trial court’s amended final judgment. CR[3].29-30. On October 3, 2012, Appellees also filed a notice of appeal notice of appeal as to the trial court’s amended final judgment. CR[4].3-4. On

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February 6, 2013, the trial court issued findings of fact and conclusion of law relating to the award of attorney fees to Kallinen. CR[4].5-6. I. This Court rules for City; Texas Supreme Court disagrees.

On August 29, 2013, this Court reversed the trial court’s order denying the City’s plea and rendered judgment that Appellees claims against the City are dismissed for want of jurisdiction. App. H. On March 20, 2015, the Supreme Court reversed this Court’s judgment and remanded to this Court for further proceedings in accordance with its opinion. App. I. Both this Court’s and the Supreme Court’s rulings focused on the City’s argument regarding whether the trial court had subject matter jurisdiction over Appellees’ claims before the Attorney General ruled on the City’s request for decision on the documents it withheld based on TPIA disclosure exceptions—and did not address other arguments raised by the City. App. H; App. I.5

Summary of Argument

First, Appellees’ TPIA mandamus and attorney fee claims were not justiciable. Appellees’ TPIA mandamus and attorney fee claims were no longer

5 For the Court’s convenience, the City includes in this brief arguments (infra, pp. 17-28) that were raised in its original appeal brief in the event the Court prefers to have one brief containing all the City’s arguments not addressed by this Court’s and the Supreme Court’s rulings.

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justiciable at the time of final judgment because they were mooted when, prior to final judgment, the City produced to Kallinen all withheld documents that the trial court ordered the City to disclose, obviating any justiciable controversy regarding entitlement to mandamus relief or attorney fees. The trial court therefore had no subject matter jurisdiction at the time it entered its modified final judgment because Appellees’ TPIA mandamus and attorney fee claims were no longer justiciable at that time due to mootness.

Second, Appellees’ claims against the City are barred by governmental immunity, which defeats subject matter jurisdiction, for several reasons. Appellees’ TDJA claims are barred by immunity because they are redundant and duplicative of their TPIA claims. Appellees’ TPIA mandamus claims are also barred by immunity because the TPIA does not waive the City’s immunity and the only proper defendant for such claims is the pertinent public information officer. Appellees’ TDJA claims are likewise barred by immunity because the TDJA likewise does not waive immunity and the only proper defendant for such claims is the pertinent public information officer. The trial court therefore had no subject matter jurisdiction because Appellees’ claims against the City are barred by governmental immunity.

Third, there was no evidence or insufficient evidence to support any award of attorney fees to Appellees. Kallinen was not entitled to any award of

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attorney fees because he did not actually incur any fees—as Kubosh, who was not a “requestor” and therefore had no justiciable claim on which to sue, incurred all the claimed fees. In addition, Appellees offered no evidence or insufficient evidence to support the amount of the attorney fee award. The trial court therefore also erred by awarding attorney fees to Appellees because they failed to satisfy their burden to support any award of fees.

Finally, although the trial court ultimately dismissed Kubosh and his claims, the City nonetheless also addresses those claims here in the event that it does not have the opportunity to file a reply brief. Kubosh’s TPIA mandamus and attorney fee claims were never justiciable due to lack of ripeness and standing because he never actually submitted any TPIA request to the City, obviating any status as a TPIA “requestor” authorized to file suit. The trial court therefore also never had no subject matter jurisdiction over Kubosh’s TPIA mandamus and attorney fee claims.

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Argument

I. The trial court erred by denying the City’s plea and otherwise had no subject-matter jurisdiction over Appellees’ claims.

A. The trial court had no subject-matter jurisdiction because Appellees’ TPIA mandamus and attorney fee claims were not justiciable.

1. Appellees’ TPIA mandamus and attorney fee claims were no longer justiciable at the time of final judgment because they were mooted when the City, prior to final judgment, produced all withheld documents that the trial court ordered the City to disclose.

The trial court had no subject-matter jurisdiction over Appellees’ TPIA mandamus and attorney fee claims due to mootness. The TPIA provides that, in an action under Section 552.321, “the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails” (subject to certain exceptions). See Tex. Gov’t Code § 552.323(a).6 The term “substantially prevails” incorporates the concept of a “prevailing party” and must be construed in line with prevailing-party requirements for recovering attorney fees. See Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696, 703 (Tex. App.—Austin 2013, no pet.).

6 Section 552.323(a) specifies exception prohibiting the court from assessing “costs and fees against a governmental body if the court finds that the governmental body acted in reasonable reliance on: (1) a judgment or an order of a court applicable to the governmental body; (2) the published opinion of an appellate court; or (3) a written decision of the attorney general, including a decision issued under Subchapter G or an opinion issued under Section 402.042.” See Tex. Gov’t Code § 552.323(a).

12

Although a requestor may plead TPIA mandamus and attorney fee claims and even obtain favorable interlocutory summary judgment on mandamus, the case is rendered moot and the requestor does not substantially prevail where the governmental body produces the disputed documents before final judgment, thus obviating any justiciable controversy. See Giggleman, 408 S.W.3d at 702-06; see also Int’l Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 (Tex. 2009) (to qualify as “prevailing party” there must be judicially sanctioned relief on the merits that materially alters the legal relationship between the parties such as damages award, injunctive or declaratory relief, or consent decree or settlement in party’s favor). Satisfaction of the TPIA “substantially prevails” prong for fee recovery requires an enforceable final judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement. See Giggleman, 408 S.W.3d at 703; see also Int’l Grp. P’ship, 295 S.W.3d at 654.

In this case, Appellees’ TPIA mandamus and attorney fee claims were mooted prior to the trial court’s final judgment. It is undisputed that, after the trial court granted summary judgment in favor of Appellees but before it entered final judgment, the City immediately and voluntarily produced to Appellees all withheld documents that the trial court ordered the City to disclose. CR.1104. By doing so, the City obviated any justiciable controversy

13

regarding Kallinen’s (or Kubosh’s) entitlement to mandamus relief or attorney fees. See Giggleman, 408 S.W.3d at 704. This result is particularly appropriate here, where the City timely and properly requested an Attorney General opinion, but was deprived of the ability to obtain and rely on such an opinion—by Appellees’ filing suit before the Attorney General ruled and requesting the Attorney General to defer ruling due to their suit. Had the City not been so deprived, Appellees would not have been entitled to attorney fees because the City would have complied with the Attorney General ruling. It is also consistent with both Section 552.321 and Giggleman to hold that the City which—once it was provided with authoritative guidance in the trial court’s ruling, relied on it, and produced the documents—should not have been subjected to an award of attorney fees.

2. As a result, the trial court had no subject-matter jurisdiction because Appellees’ TPIA mandamus and attorney fee claims were not justiciable at the time of final judgment.

Subject matter jurisdiction is essential to the authority of a court to decide a case. See M.D. Anderson Cancer Center v. Novak, 52 S.W.3d 704, 708 (Tex. 2001); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Subject matter jurisdiction requires that the party bringing the suit have standing, that there be a live controversy between the parties, and that the case

14

be justiciable. See State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994); Tex. Ass’n of Bus., 852 S.W.2d at 443-46. The justiciability doctrines of ripeness, standing, and lack of mootness are constitutional components of subject matter jurisdiction—and are rooted in the prohibition against advisory opinions, which is rooted, in turn, in the separation-of-powers doctrine. See Patterson v. Planned Parenthood of Houston, 971 S.W.2d 439, 442-43 (Tex. 1998); Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2000).

Ripeness concerns when an action may be brought and requires that, at the time a lawsuit is filed, the facts have developed sufficiently so that an injury has occurred or is likely to occur, rather than being contingent or remote. See Patterson, 971 S.W.2d at 442. A controversy is not ripe when resolution depends on contingent or hypothetical facts. Id. at 443. Standing concerns who may bring an action and requires the plaintiff to be personally aggrieved. DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304-05 (Tex. 2008). A plaintiff does not have standing unless the alleged injury is concrete and particularized, actual or imminent, not hypothetical. Id. at 305. Mootness concerns the cessation of what was once a live controversy between the parties. Williams, 52 S.W.3d at 184. A controversy ceases to exist and a case becomes moot if the issues presented are no longer live or the parties lack a legally cognizable

15

interest in the outcome. Id. If a case becomes moot, the parties lose standing to maintain their claims. Id.

The trial court therefore had no jurisdiction at the time it entered final judgment because Appellees’ TPIA mandamus and attorney fee claims were mooted, and thus no longer justiciable, prior to that judgment due to the City’s production of the remaining documents to Kallinen.

B. The trial court also had no subject-matter jurisdiction because all Appellees’ claims are barred by immunity.

1. Appellees’ TDJA claims are barred by immunity because they are redundant and duplicative of their TPIA claims.

The TDJA also does not waive immunity for Appellees’ TDJA claims seeking relief that is redundant or duplicative of the relief they seek through their TPIA mandamus claims. Declaratory relief is proper if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995); Tex. Ass’n of Bus., 852 S.W.2d at 446. But a mere request for declaratory relief alone does not establish jurisdiction because the TDJA is not a grant of jurisdiction, but merely a procedural device for deciding cases already within a court’s jurisdiction. See Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996) (per curiam); Tex. Ass’n of Bus., 852 S.W.2d at 444. The

16

TDJA is not available to settle disputes already pending before a court. See BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990).7 Under the redundant remedies doctrine, courts will not entertain an action brought under the TDJA when the same claim could be pursued through different channels. See Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 79 (Tex. 2015). The focus of the doctrine is on the initiation of the case and, in the jurisdictional and immunity context, whether the Legislature created a statutory waiver of sovereign immunity that permits the parties to raise their claims through some avenue other than the UDJA. Id. The Texas Supreme Court, as well as the Austin Court of Appeals, has confirmed that an award of attorney fees under the TDJA is unavailable if the claim for declaratory relief is merely incidental to or redundant of relief sought through TPIA claims. See Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 300- 01 (Tex. 2011); Giggleman, 408 S.W.3d at 704.

In this case, Appellees’ pleadings confirm that their TDJA claims are redundant and duplicative their TPIA claims. Their TDJA and TPIA claims

both complain only about the disclosure of documents that Kallinen requested 7 Nor can a party use the TDJA to seek the same relief afforded under another cause of action merely in an effort to obtain recovery of otherwise impermissible attorney fees. See MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009); see also City of Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 392 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

17

from the City. So Appellees’ TDJA claims only seek to resolve issues already pending before the trial court through their TPIA claims and raise no new or different controversies. Appellees allege duplicative TDJA claims merely in an effort to obtain attorney fees, under the permissive TDJA standard, that are otherwise unrecoverable under the TPIA here. Allowing Appellees to recover attorney fees under the TDJA when they cannot meet the requirements for fee recovery under the TPIA would frustrate the limits established by the TPIA. See Jackson, 351 S.W.3d at 300. Appellees’ TDJA claims are therefore also barred by immunity because they seek relief that is redundant and duplicative of the relief that they seek through their TPIA claims.

2. Appellees’ TPIA mandamus claims are also barred by immunity because the TPIA does not waive the City’s immunity and the only proper defendant for such claims is the pertinent public information officer.

The TPIA does not waive immunity for Appellees’ TPIA mandamus claims against the City under section 552.321(a)—it authorizes such claims only against the pertinent City official. The TPIA requires an “officer for public information of a governmental body” to produce public information for inspection and/or duplication on application by any person to the officer. See Tex. Gov’t Code § 552.221(a). It also authorizes a “requestor” to file suit for a

18

writ of mandamus compelling “a governmental body” to make information available for public inspection. See Tex. Gov’t Code § 552.321(a).8 The Texas Supreme Court reconciled these provisions and held that the only “proper party” against whom mandamus may be sought under Section 552.321(a) is the officer for public information rather than the governmental body. See A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 672-73, 681 (Tex. 1995). The Court based its conclusion on the duty that the public information officer has to make public information available under Sections 552.203 and 552.221(a). Id. In addition, the Fourteenth Court of Appeals followed Sharp and reversed a summary judgment disposing of a mandamus suit filed against a county sheriff in his official capacity. See Guthrie v. Garcia, 352 S.W.3d 307, 308-10 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

The Guthrie Court also relied on the Texas Supreme Court decision in Heinrich regarding the ultra vires exception to governmental immunity based on the distinction between suits against a governmental entity and those against a public official in his official capacity. See Guthrie, 352 S.W.3d at 309 (discussing City of El Paso v. Heinrich, 284 S.W.3d 366, 372-76 (Tex. 2009)). The Heinrich court explained as follows:

8 The TPIA defines a “requestor” as “a person who submits a request to a governmental body for inspection or copies of public information.” See Tex. Gov’t Code § 552.003(6).

19

From this rationale, it is clear that suits to require state officials to comply with statutory or constitutional provisions are not prohibited by sovereign immunity, even if a declaration to that effect compels the payment of money. To fall within this ultra vires exception, a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act. Thus, ultra vires suits do not attempt to exert control over the state—they attempt to reassert the control of the state. Stated another way, these suits do not seek to alter government policy but rather to enforce existing policy.

Heinrich, 284 S.W.3d at 372. The Guthrie court therefore held that the requestor’s mandamus suit against the county sheriff in his official capacity was proper under Section 552.321(a) because any claim against the county for mandamus relief would necessarily have failed as a matter of law. See Guthrie, 352 S.W.3d at 309-10.

In this case, Appellees filed their TPIA mandamus claims under Section 552.321(a) only against the City. They did not file those claims against the City’s public information officer for the withheld information. So Appellees did not file suit against the only proper party against whom mandamus relief may be sought under Section 552.321(a), and the City is therefore immune from Appellees’ TPIA mandamus claims under Section 552.321(a).

20

3. Appellees’ TDJA claims are likewise barred by immunity because the TDJA also does not waive the City’s immunity and the only proper defendant for such claims is the pertinent public information officer.

The TDJA also does not waive immunity for Appellees’ TDJA claims against the City—and, just like the TPIA, only authorizes such claims against the pertinent City official. As outlined above, the Heinrich Court explained the ultra vires exception to immunity based on the distinction between suits against a governmental entity and those against public officials in their official capacities. See Heinrich, 284 S.W.3d at 372-76; see also Guthrie, 352 S.W.3d at 309. But Heinrich also confirmed that a plaintiff may not bring declaratory judgment actions against a governmental entity to determine rights under a particular statute. See Heinrich, 284 S.W.3d at 372-73; see also Tex. Dep’t of State Health Servs. v. Holmes, 294 S.W.3d 328, 335 (Tex. App.—Austin 2009, pet. denied). Rather, plaintiffs are limited to bringing ultra vires suits against governmental officials in their official capacities. See Heinrich, 284 S.W.3d at 372-73; Holmes, 294 S.W.3d at 335. So as a technical matter, governmental entities—as opposed to their officers in their official capacities—remain immune from suit. See Heinrich, 284 S.W.3d at 372-73.

In this case, like their TPIA claims, Appellees also filed their TDJA claims only against the City. They did not file those claims against the

21

pertinent City official in his or her official capacity. So Appellees did not file suit against the only proper party against whom declaratory relief may be sought under the TDJA, and the City is therefore also immune from Appellees’ TDJA claims.

4. As a result, the trial court also had no subject-matter jurisdiction because all Appellees’ claims are barred by immunity.

Sovereign and governmental immunity protect the State and its political subdivisions, including municipalities, from suit and liability unless such immunity is waived. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008); Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Courts interpret waivers of immunity narrowly because the intent to waive must be clear and unambiguous. See Garcia, 253 S.W.3d at 655; Reata Const. Corp., 197 S.W.3d at 375; Tex. Gov’t Code § 311.034. The party suing the governmental entity has the burden to both plead and prove consent to suit under a clear and unambiguous constitutional or statutory waiver of that immunity. See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853-55 (Tex. 2002); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Immunity from suit defeats subject-matter jurisdiction. See Reata Const. Corp., 197 S.W.3d at 374; IT-Davy, 74 S.W.3d at 855.

22

The trial court therefore had no jurisdiction because all Appellees’ claims are barred by immunity for several reasons: (1) their TDJA claims are barred because they are redundant and duplicative of their TPIA claims, (2) their TPIA mandamus claims are barred because the TPIA does not waive immunity and the only proper defendant for such claims is the pertinent public information officer, and (3) their TDJA claims are barred by immunity because the TDJA also does not waive immunity and the only proper defendant for such claims is the pertinent public information officer.

II. The trial court erred by awarding attorney fees to Appellees because there was no evidence or insufficient evidence to support any award of fees to them.

A. Kallinen was not entitled to any award of attorney fees because he did not actually incur any attorney fees—as Kubosh incurred all the claimed fees.

Even if the trial court had subject matter jurisdiction (which the City denies), Kallinen was not entitled to any attorney fee award because he did not actually incur any fees. As noted above, the TPIA requires the trial court to assess costs of litigation and reasonable attorney fees in a mandamus suit under Section 552.321—but may only award costs and fees that are actually incurred by a plaintiff who substantially prevails. See Tex. Gov’t Code § 552.323(a). The Texas Supreme Court has confirmed that attorney fees are incurred only where a party becomes liable for them and that a fee award

23

under Section 552.323(a) or the TDJA is proper only where the fees are actually incurred. See Jackson, 351 S.W.3d at 299-301 (holding that licensed attorney was not entitled to recover attorney fees under TPIA because he did not incur attorney fees since he represented himself or under TDJA because his declaratory relief claim was merely incidental to his TPIA claim).

In this case, the evidence presented at the trial court hearing on attorney fees, including all billing invoices that Appellees’ counsel submitted for representation of Appellees in this case, conclusively establishes that only Kubosh incurred all the claimed fees allegedly incurred in connection with the TPIA requests for information that only Kallinen submitted to the City. Appellees’ counsel submitted all billing invoices only to Kubosh—and did not submit any billing invoices to Kallinen. RR[1] Ex. 2. Kallinen offered no evidence that he incurred any of the claimed fees. RR[1] Ex. 2. Kallinen was therefore not entitled to any award of attorney fees because he did not actually incur any attorney fees—as Kubosh incurred all the claimed fees.9

9 To the extent that Appellees challenge the trial court’s dismissal of Kubosh due to lack of standing, the attorney fee award under the court’s original final judgment was nonetheless erroneous. First, for the reasons outlined above (which are incorporated here for all purposes), Kubosh was not entitled to any fee award because his TPIA mandamus and attorney fee claims were not justiciable. Second, for the same reasons that Kubosh was not entitled to any fee award, the fee award to Appellees jointly was erroneous and could not stand because Kallinen was not entitled to any fees that Kubosh was not entitled to recover —and Appellees failed to segregate the fees that each allegedly incurred.

24

B. Appellees were not entitled to any award of attorney fees because they failed to properly segregate recoverable (alleged)

fees from non-recoverable (alleged) fees.

Even if Kallinen incurred any fees (which the City denies), neither Appellee was entitled to any award of attorney fees because each failed to properly segregate recoverable (alleged) fees from non-recoverable (alleged) fees. The Texas Supreme Court has confirmed that where attorney fees relate to a claim for which fees are not recoverable, a claimant must segregate recoverable from unrecoverable fees. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). Intertwined facts do not make fees recoverable; it is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated. See Chapa, 212 S.W.3d at 313-14; see also Rapid Settlements, Ltd. v. Settlement Funding, LLC, 358 S.W.3d 777, 787 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Chapa, 212 S.W.3d at 313-14).

In this case, as noted above, Appellees’ counsel failed to segregate any attorney fees incurred with regard to documents that the trial court ordered the City to disclose from any incurred with regard to documents that the City ultimately disclosed to Appellees voluntarily. RR[1] Ex. 2. Appellees’ counsel also failed to segregate any attorney fees incurred by Kubosh from any incurred by Kallinen. RR[1] Ex. 2. But such segregation as to Kubosh and

25

Kallinen is critical to determining the amount of fees to which each may be entitled. It is particularly critical to ensuring that neither is awarded any attorney fees incurred only by Kubosh—who, as outlined above, lacks standing not only for the same reasons why Kallinen lacks standing, but also for the additional reason that he never actually submitted any TPIA request to the City and therefore is not even a requestor authorized to file suit for mandamus relief under Section 552.321(a). Appellees were therefore not entitled to any award of attorney fees because they failed to properly segregate recoverable (alleged) fees from non-recoverable (alleged) fees.10

C. Appellees offered no evidence or insufficient evidence to support the amount of the award of attorney fees.

In the alternative, and subject to the City’s arguments on lack of jurisdiction (including that Kallinen is not a prevailing party for purposes of TPIA fee recovery), Appellees also failed to offer any evidence or any sufficient evidence to support any fee award. As noted above, the TPIA authorizes the court to assess reasonable attorney fees incurred by a plaintiff who substantially prevails in a mandamus suit under Section 552.321(a). See

10 Although Appellees did segregate fees to a limited (and insufficient) extent after the trial court’s original final judgment, they failed to properly segregate fees separately incurred by each of them.

26

Tex. Gov’t Code § 552.323(a). In this case, Appellees offered no evidence or insufficient evidence to establish that any attorney fees they allegedly incurred were reasonable. The City’s attorney fee expert, Patrick Zummo, testified at the attorney fee hearing in the trial court that Appellees’ claimed attorney fees were not reasonable or proper for multiple reasons.

Mr. Zummo explained that Appellees’ counsel did not exercise appropriate billing judgment. RR[1].122, 134-35, 139, 1144. Mr. Zummo’s testimony also confirms that Appellees’ evidence cannot support their burden to prove that the claimed attorney fees were reasonable because:

1. The billing invoices included many single entries for total time allegedly expended in a single day instead of multiple daily entries broken down for discrete individual tasks. RR[1].128-29, 141-43, 149, 182.

2. Many task descriptions were too generic which precluded any independent assessment of the reasonableness of the stated time amounts. RR[1].132, 133, 147.

3. Many task descriptions were redacted which also precluded independent assessment of the reasonableness of the stated time amounts. RR[1].121, 130, 133, 149, 151, .

4. Tasks relating to the deliberative process privilege and attorney-client privilege on which the City relied were not segregated even though they could have been segregated for the most part. RR[1].148-49, 152-54.

5. The billing invoices included amounts for extensive research on legal issues of Appellees’ counsel touted expertise. RR[1].132, 156-57.

6. The billing invoices included amounts for numerous attorney-client conferences to discuss “strategy” despite the fact that strategy had not

27

significantly changed and that Appellees are lawyers. RR[1].132-33, 141-

42, 147-48, 150, 151, 180, .

7. The billing invoices included amounts for unproductive speculation and investigation regarding whether Professor Robert Stein of Rice University allowed an alleged employment relationship between his wife and staff of the Mayor of the City of Houston to influence his research, analysis and opinions. RR[1].146-47.

8. The billing invoices included amounts for excessive time spent reviewing the City’s documents and performing other tasks. RR[1].136-44, 151.

Mr. Zummo’s testimony therefore raised numerous fact issues regarding whether Appellees satisfied their burden to prove that the claimed attorney fees were reasonable.

Mr. Zummo testified that the foregoing issues with Appellees’ claimed attorney fees required reduction of about $21,440.00 (based upon 67 hours at $320 per hour). RR[1].151-52. Mr. Zummo also testified that, based on the count of the documents subject to the trial court’s rulings, Appellees were not successful in their attempt to obtain 25% of the documents they sought— reflecting the total percentage of withheld document for which the City claimed the attorney-client privilege. RR[1].153-55. Mr. Zummo determined that, even after deduction of $21,440 as stated above, the remaining amount should be further reduced accordingly to a percentage reflecting only the total percentage of withheld documents that the trial court ordered the City to

28

disclose. RR[1].153-55. Mr. Zummo’s testimony therefore also confirms that the amount of attorney fees awarded was excessive.

III. The trial court also had no subject-matter jurisdiction over Kubosh’s claims; Kubosh’s TPIA mandamus and attorney fee claims were never justiciable due to lack of ripeness and standing because he never submitted any TPIA request to the City.

The trial court also had no subject-matter jurisdiction over Kubosh’s TPIA mandamus and attorney fee claims due to lack of ripeness and standing. As noted above, the TPIA authorizes a “requestor” to file suit for a writ of mandamus compelling a governmental body to make information available for public inspection—and defines a “requestor” as “a person who submits a request to a governmental body for inspection or copies of public information.” See Tex. Gov’t Code §§ 552.321(a), 552.003(6). The plain language of Section 552.321 therefore only authorizes a person who submits a request for information to a governmental body to file suit for a writ of mandamus. In this case, it is undisputed that Kubosh never actually submitted any request for information to the City before filing his TPIA claims against the City—despite their lack of ripeness and his lack of standing. The trial court therefore had no subject-matter jurisdiction over Kubosh’s TPIA mandamus and attorney fee claims under Sections 552.321(a) and Section 552.323 because those claims were not justiciable due to lack of ripeness and standing.

29

Conclusion and Prayer

For these reasons, the City Houston asked this Court to (1) reverse the order of the trial court denying the City’s plea to the jurisdiction and render judgment in the City’s favor that all Kallinen’s claims against the City are dismissed for want of jurisdiction, and (2) reverse the modified final judgment of the trial court awarding attorney fees to Kallinen and render judgment in the City’s favor that Kallinen is not entitled to attorney fees and shall take nothing on any of his claims against the City.

30

Respectfully submitted,

DONNA L. EDMUNDSON

City Attorney

JUDITH L. RAMSEY

Chief, General Litigation Section

By: /s/ Fernando De Leon

Fernando De Leon

Senior Assistant City Attorney SBN: 24025325

CITY OF HOUSTON LEGAL

DEPARTMENT

900 Bagby Street, 4th Floor Houston, Texas 77002

832.393.6491 (telephone)

832.393.6259 (facsimile)

fernando.deleon2@houstontx.gov

Attorneys for Appellee

Certificate of Compliance

I certify that the foregoing was prepared in Microsoft Word 2010 Version 14.0 in Calisto MT 14 point font; the word-count function shows that, excluding those sections exempted under TRAP 9.4(i)(1), the brief contains 6,660 words.

/s/ Fernando De Leon

Fernando De Leon

31

Certificate of Service

I hereby certify that a true and correct copy of the foregoing document has been forwarded on December 9, 2015 to the following counsel of record by e-service:

Joseph R. Larsen David A. Furlow SEDGWICK LLP LAW OFFICE OF DAVID 1200 Smith Street, Suite 1600 A. FURLOW, P.C. Houston, Texas 77002 4126 Rice Boulevard joseph.larsen@sedgwicklaw.com Houston, Texas 77005 dafurlow@gmail.com

Attorneys for Appellees

/s/ Fernando De Leon

Fernando De Leon

Appendix

Tab A. Order on Plaintiffs’ Summary Judgment (dated October 12, 2009)

(CR.582)

B. Order Granting Plaintiffs’ Motion for Partial Summary Judgment and No-Evidence Partial Motion for Summary Judgment on Conceded Documents (dated October 12, 2009) (CR.583-85)

C. Order (dated December 8, 2009) (CR.931-32) D. Order on City’s Motion to Strike Paul Kubosh (dated March 1, 2010)

(CR.969)

E. Final Judgment (dated October 12, 2011) (CR.1094-95) F. Order (dated January 5, 2012) (CR.1208) G. Amended Final Judgment (dated July 12, 2012) (CR[2].17-18) H. First Court of Appeals Judgment and Opinion (dated August 29, 2013)

I. Supreme Court Judgment and Opinion (dated March 20, 2015) J. Order for Supplemental Briefing On Remand

Tab A

P-

re\PsTz.

NO. 2008-75633

Randall Kallinen, IN THE DISTRICT COURT OF

VS.

HARRIS COUNTY, TEXAS

City of Houston

295th JUDICIAL DISTRICT

Order on Plaintiffs' Summary Judgment

After reviewing the requested documents in camera, the court grants the Plaintiffs'

Motion for Summary Judgment in part and denies it in part. The court holds that the documents that the City of Houston are withholding under the deliberative process privilege do not fall under that exception as defined by Garland v. Dallas Morning News, 22 S.W. 3d 351 (Tex. 2000).

However, most of the documents that the City is withholding under the attorney client privilege are privileged with the exception of: COMA 64, 102, 133 and 149.

There are a few documents that the City has listed under both exceptions. COHP 36, 37 and 38, 40 are protected under attorney client. COHP 39, the top email only is protected. COHP 41, the top email is protected.

The documents will remain confidential pending a decision to appeal by the City.

FILED Loren Jackson Signed October 12, 2009.

District Clerk

OCT 12 2009

Harris County, Texas

By Tracy Christopher

Judge Presiding

Tab B

Flied 09 October 8 P6:18

Low Jackson - District Cleric Harris Cou239854

ED101J01

CAUSE NO. 2008-75633 By Sandra Talbert

RANDALL KALLINEN and PAUL KUBOSH IN THE DISTRICT COURT OF

P- 3

v. HARRIS COUNTY, TEXAS s 7-

CITY OF HOUSTON, TEXAS 295th JUDICIAL DISTRICT

ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND NO-EVIDENCE PARTIAL MOTION FOR SUMMARY JUDGMENT ON CONCEDED DOCUMENTS

CAME BEFORE the Court this day Plaintiffs Randall Kallinen and Paul Kubosh's Motion for Entry of Judgment on Conceded Documents. The Court FINDS that the City, in its Response to Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Motion for Partial Summary Judgment, provided no evidence or argument that the documents identified below fall within either the attorney-client privilege or deliberative process privilege exception to the Texas Public Information Act. Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Motion for Partial Summary Judgment is hereby GRANTED as to these documents, set out below by Bates numbers:

A004 A055 A005-A007 A056 A009-A014 A057-A058 A015-A018 A059-A061 A025 A062 A034-A035 A063 A036-A037 A072-A075 A049 A076-A078 A050 A079 A051 A080 A084 A094-A095 A085 A096-A097 A086-A088 A100-A101 A089-A091 A103 A092-A093 A104

100583

A105 A183 A112-A113 A184 A114 A185 A123-A124 A186 A125 A187-A188 A126 A192-A193 A127-A131 A202-A203 A132 A208 A134-A136 A222 A137-A138 A223 A139-A141 A224 A142-A143 A225 A144-A148 A226 Al 56-A160 A227 A161 A228 A163 A229 A172 A240 A175 A241 A176 A243 A177 A245 A178 A247-A248 A179 A249 A180

P004-P005 P220-P221 P005-P007 P222 P008-P009 P223-P228 P027-P029 P250 P030 P251 P031 P252 P032 P257 P033 P258 P034 P261-P262 P035 P288 P044-P045 P289 P046 P290-294 P047 P295 P048 P296 P063 P297-P313 P066-P114 P313-P315 P115-P116 P357 P117-P119 P390 P124 P393-P425 P157 P426 P159-P160

Judgment is hereby entered in favor of Plaintiffs Randall Kallinen and Paul Kubosh on their claims under the Texas Public Information Act and Texas Declaratory Judgments Act for the above- referenced documents. 11 • VI V .11 I •I e: .1

., • s• :1 nce o ion :1 I .1 "I • •• • Si IS se documents _3.1Alielt-remain-irminrfition and on which the Court has nT)ryarruleci7—• Signed this 1a day of October, 2009.

JUDGE TRACY CHRI HER

APPROVED AS TO FORM AND SUBSTANCE:

Jose SE P WICK, DETERT, MORAN & ARNOLD LLP 1 1 1 Bagby St., Suite 2300 Houston, Texas 77002 Telephone No.: (832) 426.7000 Facsimile No.: (832) 426.7009 Attorneys for Plaintiffs Randall Kallinen and Paul Kubosh

3

ar..k 1•—.4

Tab C

Flied 09 November 18 P2:30 Loren Jackson - District Cie* Herds

ED101=7944

CAUSE NO. 2008-75633 • By: Melanie Broughton-Cooper

RANDALL KALLINEN and IN THE DISTRICT COURT OF PAUL KUBOSH

v. HARRIS COUNTY, TEXAS roocx CITY OF HOUSTON, TEXAS 295th JUDICIAL DISTRICT

74 74 A b.. R mai r 0 kikt.J__ On the day of , 2009, came on to be heard Plaintiffs Randall

Kallinen and Paul Kubosh's Motion for Judgment and for Award of Attorneys' Fees. The Court, having reviewed papers on file in this case and having heard arguments of counsel, is of the opinion that the motion has merit and it is hereby GRANTED.

The Court specifically FINDS that the documents set out in the Order on Summary Judgment and Order Granting Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Motion for Partial Summary Judgment on Conceded Documents are public information that may not be withheld from release pursuant to an exception to the Act. The Court further FINDS that the City of Houston had refused to release this information from release necessitating Plaintiffs' mandamus suit and that Plaintiffs have substantially prevailed in this action. pursuant to TEX. GOV 'T CO ' • 552.323(a), ainti s s ou s recover their reasonable and nec attorney's fees. On e evidence presented, the Co • FINDS Plaintiffs reasona and necessary attorneys fees to be ($ ).

IT IS THEREFORE, ORDERE R , A • ' • ED AND DECREED that the documents identified by the Order on Sum Judgment and Or• Granting Plaintiffs' Motion for Partial Summary Judgment o-Evidence Motion for Partial S i ary Judgment on Conceded Documents are lic information that may not be withheld pursuant to • ception to the Act.

nt.1235172 hit

^ ^,x46,47J. •..,.&"

The Court er ORDERS, ADJUDGES and DECRE that Plaintiffs should recover its reasonable and ssary attorney's fees, ch the Court finds to be dollars ($ with post judgment interest thereon at the rate of peace t (%) per um from the date of this judgment until paid, together with all costs of court in its beh ex ded.

The Court further ORDE' , D.TUDGES and DECREES that, in the event the City appeals this Final Judgment, the r .nable an• ecessary attorneys fees to Plaintiffs for successful defense of this Judgment on ap al will be dollars ($ ) and successful defense of this Ju ent before the Texas S reme Court will be dollars ($ P intiffs Randall Kal linen and Paul Kubosh allowed such writs and processes as may be ne ary in the enforcement and collection of this Jud: ent.

it-is-so-61WERED. "1/41 _tarri.lFs t 9010

SIGNED this day of 02--C-- . , 2009. +u-To Luea (4.

ockL4,_

A k

HONORA JUDGE TRACY STOPHER

Tab D

Filed 09 December 30 P5:44 I Loren Jackson - Dtstrict Clerk!

Harris County

ED101J015619292

CAUSE NO. 2008-75633 By: Sandra Talbert

RANDALL KALLINEN and IN THE DISTRICT COURT OF /7---

/7---

PAUL KUBOSH ST Y

v. HARRIS COUNTY, TEXAS

CITY OF HOUSTON, TEXAS 295th JUDICIAL DISTRICT ORDER ON CITY'S MOTION TO STRIKE PAUL KUBOSH CAME BEFORE the Court today the City's Motion to Strike Paul Kubosh as plaintiff in this action. The Court, having reviewed the papers on file, including previous Orders of the Court, and having heard argument of counsel, hereby FINDS:

The City's Motion to Strike Kubosh has already been denied by Order of the Court of December 7, 2009 finding Paul Kubosh to be a substantially prevailing party in this lawsuit;

The City has presented no argument or authority in addition to the papers it submitted to the Court prior to this ruling and the Court finds no basis for overturning the Order finding Kubosh a substantially prevailing party in this case; and The Court ORDERS that the City's Motion to Strike Paul Kubosh as a plaintiff in this matter is, in all respects, DENIED.

Signed the day of January, 2010.

JUDGE PRESIDING

Tab E

V CAUSE NO. 2008-75633

RANDALL KALLINEN and IN THE DISTRICT COURT OF PAUL KUBOSH

v. HARRIS COUNTY, TEXAS

CITY OF HOUSTON. TEXAS 295th JUDICIAL DISTRICT

FINAL JUDGMENT

The Court FOUND in its Order on Plaintiffs' Summary Judgment and its Order Granting Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Partial Motion for Summary Judgment on Conceded Documents, both of October 12, 2009, that the documents set out therein are public information that may not be withheld from release pursuant to an exception to the Act. As set out in these prior Orders of the Court. Judgment is hereby entered that the following documents identified by Bates number in the litigation are public information and not subject to an exception to the Act:

COHA004-COHA007 COHA183-COHA188 COHA009-COHA018 COFIA192-COHA193 COHA025 COHA202-COHA203 C=D C".41

COHA034-COHA037 COHA208 f,5 oa COHA049-COHA051 COHA222-COHA229 ..1;

c'

.0 so

COHA055-COHA064 CO1{A240-COHA241 0,3 L)

f=")

COHA072-COHA080 COHA243 COHA084-COHA097 COHA245 COHA100-COHA105 COHA247-COHA249 COHA112-COHA114

COHA123-COHA149

COHA156-COHA161 COHP001 COHP035 COHA163 COHP039 (except top e-mail)

COHA172 COHP041 (except top e-mail)

COHA175-COHA180 COHP042-COHP426

The Court FOUND in its Order of December 8, 2009 that the City of Houston had refused to release this information necessitating Plaintiffs' mandamus suit, and that Plaintiffs have substantially

2676379-1

010'7-'4

•

prevailed in this action. The three referenced prior Orders of the Court are attached hereto and

incorporated herein. Judgment is hereby entered that Plaintiffs have substantially prevailed in this Public Information Act mandamus suit and pursuant to TEX. GOV'T CODE § 552.323(a) shall recover their reasonable attorneys' fees. Following trial on this issue and on the evidence presented, the Court FINDS Plaintiffs' reasonable attorney's fees to be ninety-five thousand six hundred sixty four and no/100 dollars ($95,664.00).

The Court further ORDERS, ADJUDGES and DECREES that Plaintiffs should recover its reasonable and necessary attorney's fees. which the Court finds to be ninety-five thousand six hundred sixty four and no/100 dollars ($95.664.00), with post-judgment interest thereon at the rate of five percent (5 %) per annum from the date of this judgment until paid, together with all costs of court in its behalf expended.

The Court further ORDERS, ADJUDGES and DECREES that, in the event the City appeals this Final Judgment, the reasonable and necessary attorneys fees to Plaintiffs for successful defense of this Judgment on appeal will be thirty thousand and no/100 dollars ($30,000.00) and successful defense of this Judgment before the Texas Supreme Court will be fifty thousand and no/100 dollars ($50,000.00).

Plaintiffs Randall Kallinen and Paul Kubosh are allowed such writs and processes as may be necessary in the enforcement and collection of this Judgment.

It is so ORDERED.

SIGNED this i2 day of c77LA_ , 2011.

kA_ 0-4,4_4;LL

HONORABLE JUDGE CAROLINE BAKER

2676379-1

Tab F

O P-

pJuRY

CAUSE NO. 2008-75633 r yNNTr<y RANDALL KALLINEN and IN THE DISTRICT COURT OF PAUL KUDOS']

HARRIS COUNTY, TEXAS

V.

CITY OF HOUSTON 295th .JUDICIAL DISTRICT

ORDER

Came on to be heard Defendant City of Houston's Plea to the Jurisdiction and Motion for New Trial. Upon consideration, the Court makes the following rulings:

It is ORDERED that Defendant City of Houston's Plea to the Jurisdiction is denied.

It is further ORDERED that Defendant City of Houston's Motion for New Trial is GRANTED IN PART and a new trial is hereby ordered at to an award of attorney's fees to Plaintiff Paul Kubosh. It is further ORDERED that the remainder of Defendant City of Houston's Motion for New Trial is DENIED.

Signed this 5th day of January, 2012.

e_0.A0-4.c4;1_t_6(kJe__LA___ JUDGE PRESIDING

FILED

Chris Daniel

District Clork

JAN — 6 2012

—7 77

'1208

Tab G

Filed 12 June 19 P3:20

Chris Daniel - District Clerk Harris County

ED101J016936034

By Irma medina

CAUSE NO. 2008-75633

RANDALL KALLINEN and IN THE DISTRICT COURT OF PAUL KUBOSH 5

5

V. HARRIS COUNTY, 1 b.XAS

5

5

CITY OF HOUSTON,1EXAS 5 295th JUDICIAL DISTRICT

AMENDED FINAL JUDGMENT

The Court FOUND in its Order on Plaintiffs' Summary Judgment and its Order Granting Plaintiffs' Motion for Partial Summary judgment and No-Evidence Partial Motion for Summary Judgment on Conceded Documents, both of October 12, 2009, that the documents set out therein are public information that may not be withheld from release pursuant to an exception to the Act. As set out in these prior Orders of the Court, Judgment is hereby entered that the following documents identified by Bates number in the litigation are public information and not subject to an exception to the Act:

COHA004-CORA007 COHA183-COHA188 COHA009-COH.A.018 COHA192-COHA193 COHA025 COHA202-CORA203 COHA034-COHA037 CORA208 COHA049-COHA051 COHA222-COHA229 COHA055-COHA064 C01-1A240-COHA241 COHA072-COHA080 COHA243 COHA084-COHA097 COHA245 COH.A.100-CORA105 COHA247-COHA249 COHA112-COHA114 COHA 123 -COHA149 COHA156-COHA161 COHP001 COHP035 COHA163 COHP039 (except top e-mail)

COHA172 COHP041 (except top e-mail)

COHA175-COHAl 80 COHP042-COHP426

The Court FOUND in its Order of December 8, 2009 that the City of Houston had refused to release this information necessitating Plaintiffs' mandamus suit, and that Plaintiffs have substantially prevailed in this action. The three referenced prior Orders of the Court are incorporated herein. The

200022v1

Court also FINDS and ORDERS, however, that Paul ICubosh does not have standing in this case, and he is dismissed with prejudice by this Judgment. Judgment is hereby entered that Randall Kallinen has substantially prevailed in this Public Information Act mandamus suit and pursuant to TEX. GOV'T CODE § 552.323(a) shall recover his reasonable attorneys' fees. Following trial on this issue and on the evidence presented, the Court FINDS Kallinen's reasonable attorney's fees to be ninety-two thousand one hundred seventy-six and no/100 dollars ($92,176.00).

The Court further ORDERS, ADJUDGES and DECREES that Randall Kallinen should recover his reasonable and necessary attorney's fees, which the Court finds to be ninety-two thousand one hundred seventy-six and no/100 dollars ($92,176.00), with post-judgment interest thereon at the rate of five percent (5 %) per annum from the date of this judgment until paid, together with all costs of court in his behalf expended.

The Court further ORDERS, ADJUDGES and DECREES that, in the event the City appeals this Final Judgment, the reasonable and necessary attorneys fees to Randall Kallinen for successful defense of this Judgment on appeal will be thirty thousand and no/100 dollars ($30,000.00) and successful defense of this Judgment before the Texas Supreme Court will be Fifty thousand and no/100 dollars ($50,000.00).

Plaintiff Randall Kallinen is allowed such writs and processes as may be necessary in the enforcement and collection of this Judgment.

It is so ORDERED.

SIGNED this day of , 2012.

HONORABLE JUDGE CAROLINE BAKER

2860022v1 -2-

Tab H

JUDGMENT

Court of Appeals

First District of Texas

NO. 01-12-00050-CV

CITY OF HOUSTON, Appellant V.

RANDALL KALLINEN AND PAUL KUBOSH, Appellees Appeal from the 295th District Court of Harris County. (Tr. Ct. No. 2008-75633).

This case is an appeal from the final judgment signed by the trial court on January 5, 2012. After submitting the case on the appellate record and the arguments properly raised by the parties, the Court holds that there was reversible error in the trial court’s judgment in the following respect: the trial court erred in denying the City of Houston’s plea to the jurisdiction. Accordingly, the Court reverses the trial court’s judgment denying the City of Houston’s plea to the jurisdiction and renders judgment that Randall Kallinen’s and Paul Kubosh’s claims against the City of Houston are dismissed for want of jurisdiction.

The Court orders that the appellees, Randall Kallinen and Paul Kubosh, jointly and severally, pay all appellate costs.

The Court orders that this decision be certified below for observance.

Judgment rendered August 29, 2013.

Panel consists of Justices Bland, Sharp, and Massengale. Opinion delivered by Justice Sharp.

Opinion issued August 29, 2013

In The

Court of Appeals

For The

First District of Texas

City’s red light camera installations. After a series of rulings by the trial court, the City filed a motion for new trial and plea to the jurisdiction. The trial court denied the City’s plea to the jurisdiction. In two issues, the City challenges the trial court’s orders denying its plea to the jurisdiction and awarding attorney’s fees to appellees. We reverse and render.

Background

In November and December 2008, Kallinen made four requests under the TPIA for release of information regarding a commissioned study on traffic light cameras in Houston. The City released some of the documents but withheld others based upon disclosure exceptions under the Act. The City also requested a decision from the Attorney General regarding whether the TPIA exceptions applied. Before the Attorney General had issued a decision, appellees filed suit in district court on December 26, 2008, seeking a writ of mandamus under the TPIA.1 Appellees then requested that the Attorney General refrain from making a determination because the issue was a subject of ongoing litigation. The Attorney General did subsequently decline to issue an opinion in order to allow the trial court to decide whether the withheld documents were excepted from disclosure under the TPIA.

1 Appellees also filed a declaratory judgment under the Texas Declaratory Judgment Act (“TDJA”), seeking a declaration that disclosure was required. See TEX. CIV.

PRAC. & REM. CODE ANN. § 37.002(b) (West 2008).

On September 14, 2009, appellees filed a motion for partial summary judgment seeking a ruling as to whether the TPIA’s exceptions applied to the withheld documents. On October 12, 2009, the trial court granted in part, and denied in part, appellees’ summary judgment motion, and ordered the City to disclose some of the withheld documents. On November 16, 2009, appellees filed a motion for entry of judgment and award of attorney’s fees and, following a hearing on appellees’ attorney’s fee claim, the trial court issued a final judgment on October 12, 2011, reiterating its October 12, 2009 ruling and awarding appellees $95,664 jointly in attorney’s fees.

On November 10, 2011, the City filed a motion for new trial and plea to the jurisdiction. On January 5, 2012, the trial court granted the City’s motion for new trial as to attorney’s fees for Kubosh and denied the City’s plea to the jurisdiction. On July 12, 2012, the trial court entered a modified final judgment ruling that Kubosh was without standing and awarding him no attorney’s fees.

Standard of Review

A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction which is essential to the authority of a court to decide a case. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). A plea challenging a trial court’s jurisdiction is a question of law that is reviewed de novo. See City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010).

The construction of a statute, too, is a question of law which is reviewed de novo. See Atmos Energy Corp. v. Cities of Allen, 353 S.W.3d 156, 160 (Tex. 2011). The purpose of interpretation is to arrive at the legislature’s intent in creating the statute. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). In discerning legislative intent, we consider the plain and common meaning of the statutory language. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). The statute must be read as a whole, giving effect to all— not just isolated—portions. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). Courts also consider the objective the law seeks to obtain. See TEX. GOV’T CODE § 311.023(1) (West 2005).

Discussion

In its first issue, the City contends that the trial court erred in denying its plea to the jurisdiction because, among other reasons, the Attorney General declined to perform his statutory duty to issue a decision on the City’s request. Appellees argue that they have a statutory right to file a suit for writ of mandamus against the City because the City refused to release public information.

A. Applicable Law The TPIA governs public disclosure of information about the affairs of the government and the official acts of public officials and employees, and it requires the officer for public information of a governmental body to produce public

5

information for inspection or copying on application by any person to the officer. See TEX. GOV’T CODE ANN. §§ 552.001, .203, .221(a) (West 2012). A “requestor” is defined as “a person who submits a request to a governmental body for inspection or copies of public information.” Id. § 552.003(6).

The TPIA also lists numerous exceptions from required disclosure. See id.

§§ 552.101–.153. Though the act is to be liberally construed in favor of granting requests for information, id. § 552.001(b), a governmental body may seek to withhold requested information that it believes falls within one of the statutory exceptions to disclosure. See id. §§ 552.101–.153. To do so, the government body must timely request an Attorney General determination (if there has not been a previous determination) and assert which exceptions to disclosure apply to the information requested. Id. § 552.301. The TPIA provides that “the attorney general shall promptly render a decision requested . . . determining whether the requested information is within one of the exceptions . . . .” Id. § 552.306(a). However, the governmental body may disclose the requested information to the public or to the requestor before the Attorney General—or, if suit is filed under the TPIA, the court with jurisdiction—makes a final determination that the requested information is public, except if the requested information is confidential by law. See id. § 552.303(a).

The TPIA also provides that the Attorney General and the original requestor may file suit for a writ of mandamus to compel a governmental body to release information to the public “if the governmental body refuses to request an attorney general’s decision . . . or refuses to supply public information or information that the attorney general has determined is public information.” Id. § 552.32(a). If a governmental body does not request an Attorney General decision after receiving a written request for information, the requested information is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold it. See id. § 552.302. Further, the TPIA also provides that the only exceptions to required disclosure that the governmental body may raise in such a suit are those that it properly raised before the Attorney General to support its request for a decision as to whether disclosure is required. See id. § 552.326(a).

B. Analysis The issue before us is whether the TPIA allows a requestor to sue for a writ of mandamus prior to the Attorney General issuing a decision when the governmental body has requested one. The City contends that the TPIA requires the Attorney General to render a decision before a mandamus suit may be filed. Appellees argue that no such requirement has been or should be read into the TPIA.

As previously noted, section 552.321(a) sets out three scenarios under which the Attorney General or a requestor may file a mandamus suit. First, if a governmental body fails to request an Attorney General decision in the time permitted, the information is presumed to be open to public disclosure, and the governmental body must release the information. See id. § 552.321(a). If it fails to do so, the requestor may file suit for a writ of mandamus. See id. Second, if the Attorney General has rendered a decision and the governmental body has failed to comply with the decision, the Attorney General or the requestor may then file suit. See id. Finally, either the Attorney General or the requestor may file suit, if the governmental body “refuses to supply public information.” Id.

Appellees argue that the third scenario applies here. That is, they argue that the City refused to release public information and they were therefore entitled to file a mandamus suit. In support of their argument, appellees point out that the legislature did not qualify the word “refuse” by including exceptions for cases in which the government body has requested an Attorney General ruling. 2 That

2 Appellees rely on Thomas v. Cornyn, 71 S.W.3d 473, 486 (Tex. App.—Austin 2002, no pet.) (noting that mandamus statute “does not qualify the word ‘refuse’

by including an exception for cases in which the governing body has filed a suit against the attorney general under the Act, and we will not read such an exception into the statute.”). That reliance is misplaced. In Thomas, the Attorney General had already rendered a decision on the nature of the information. According to section 552.324(a)(2), a governmental body may sue for declaratory relief from compliance with an already issued decision by the Attorney General. The Thomas court correctly determined that the suit for writ of mandamus filed after the Attorney General decision and before the suit for declaratory relief had been

8

reading, however, is unpersuasive. Though the term “refuse” is not qualified, the term “information” is. See id. § 552.321(a) (permitting suit for writ of mandamus where “governmental body refuses to supply public information”) (emphasis added). Because the TPIA carves out numerous exceptions to disclosure of certain types of information and establishes procedures to determine whether information falls under those exceptions, it is illogical to presume that information is public while its very status is being challenged. Additionally, considering that the statute explicitly states when information is presumed to be public—i.e., if the governmental body has not made an Attorney General request—it does not stand to reason that information should be considered public when a request has been made.

Not only does the statute clearly provide when a mandamus suit may be filed, but it is equally clear that the Attorney General must render a decision on the nature of the information in question. The City contends that the TPIA is a comprehensive regulatory scheme under which the Attorney General must issue a decision before a mandamus suit may be filed.3 It argues that because the Attorney

decided was a valid one, pointing to the relevant provision in 552.325(a) allowing a requestor to intervene in such suits. The language that appellees cite from Thomas is clearly applicable only to fact patterns involving governmental bodies’

suits against the Attorney General, not for suits for writ of mandamus prior to an Attorney General ruling.

3 An agency has exclusive jurisdiction when it is clear that the legislature instituted a pervasive regulatory scheme meant to be the exclusive means of remedying certain problems targeted by the legislation. See Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). If an agency has

General did not issue a decision in this case before appellees filed their suit, the jurisdictional prerequisite for filing suit under section 552.321 was not met. Appellees, citing past Attorney General decisions, contend that the Attorney General may—indeed, must in this case—defer to courts’ decisions when certain issues are being litigated.

The Attorney General, however, has already weighed in on this debate:

Open Records Decision No. 687 concludes that “in accordance with its legislatively[] mandated function, the Attorney General has a statutory directive to rule on a PIA disclosure question in the first instance in advance of judicial review.” Tex. Att’y Gen. OR2011-687. After acknowledging the previous agency decisions cited by appellees in which the agency had declined to issue an opinion when that same question was pending before a court, the Attorney General ruled that “this litigation policy is withdrawn and is no longer applicable to the PIA ruling process.” Id.

This decision is significant in several ways. First, it notes that the Attorney General may not refuse to fulfill his duty to render open records decisions. See Hous. Chronicle Publ’g Co. v. Mattox, 767 S.W.2d 695, 698 (Tex. 1989). Second,

exclusive jurisdiction, a party must exhaust all administrative avenues before asking for judicial review of the agency’s action. Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 1999). Otherwise, a trial court lacks subject matter jurisdiction and must dismiss the claims within the agency’s exclusive jurisdiction.

See Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex. 1992).

it points out the 1999 revisions to the TPIA, which expanded the scope of the Attorney General’s role. In particular, the decision highlights the addition of section 552.011, which charges the Attorney General with “maintain[ing] uniformity in the application, operation, and interpretation of this chapter.” The decision then concludes that the detailed statutory scheme under which the Attorney General’s open records ruling process operates, as well as the lack of any language affirmatively directing the Attorney General to decline to issue an open records ruling for the benefit of the public, demonstrate that such Attorney General decisions are, indeed, mandatory. Finally, Open Records Decision No. 687 offers insights into the policy considerations underpinning the Attorney General’s expanded role under the statute. Vesting the Attorney General with the role of evaluating requests by governmental bodies to withhold putatively excepted information is both more efficient, avoiding the expense of court action, and more democratic, allowing Texans equal access to information regardless of their ability to secure legal representation. The decision concludes by stating that “there is little to commend a rule that would avoid ruling on a pending question where the Attorney General has not previously spoken.” Tex. Att’y Gen. OR2011-687.

We agree with the Attorney General’s interpretation. 4 The TPIA is a comprehensive statutory scheme under which “the Attorney General [is] the first arbiter of openness before Texans can be denied access to their government’s records.” See Tex. Att’y Gen. OR2011-687 (noting that, in enacting TPIA, legislature “set[] out a detailed statutory scheme . . . which . . . evidences [its] intention that the Attorney General play a critical, quasi-judicial role when a governmental body wishes to avoid releasing information requested pursuant to the PIA.”); see also Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 121 (Tex. 2011) (Wainwright, J., concurring) (describing TPIA as “comprehensive scheme arming the public with statutory mandates for the government to disclose information . . . .”). Although district courts have subject matter jurisdiction under the TPIA, that jurisdiction only arises after the Attorney General has ruled. See TEX. GOV’T CODE ANN. § 552.321(a).

Appellees filed suit for writ of mandamus before the Attorney General issued a ruling on the information that the City sought to withhold. Because

4 Although not binding authority on appellate courts, we give due consideration to the Attorney General on questions involving the TPIA. See Holmes v. Morales, 924 S.W.2d 920, 924 (Tex. 1996) (explaining that Attorney General opinions are “persuasive but not controlling” authority); City of Lubbock v. Cornyn, 993 S.W.2d 461, 463 (Tex. App.—Austin 1999, no pet.) (recognizing due consideration to be given Attorney General decisions especially in cases involving TPIA); City of Hous. v. Hous. Chronicle Publ’g Co., 673 S.W.2d 316, 322 (Tex.

App.—Houston [1st Dist.] 1984, no writ) (“While opinions of the Attorney General are not binding upon the courts, they should be given great weight.”).

appellees failed to exhaust their administrative remedies before doing so, the trial court lacked subject matter jurisdiction over their mandamus suit. As such, the trial court erred in denying the City’s plea to the jurisdiction. We sustain the City’s first issue.

Conclusion

We reverse the trial court’s order denying the City’s plea to the jurisdiction and render judgment that appellees’ claims against the City are dismissed for want of jurisdiction.

Jim Sharp

Justice

Panel consists of Justices Bland, Sharp, and Massengale.

Tab I

IN THE SUPREME COURT OF TEXAS 444444444444

NO . 14-0015

444444444444

RANDALL KALLINEN AND PAUL KUBOSH, PETITIONERS, v.

THE CITY OF HOUSTON, RESPONDENT

4444444444444444444444444444444444444444444444444444 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS 4444444444444444444444444444444444444444444444444444

JUDGMENT

THE SUPREME COURT OF TEXAS, having heard this cause on petition for review from the Court of Appeals for the First District, and having considered the appellate record and parties’ briefs, but without hearing oral argument under Texas Rule of Appellate Procedure 59.1, concludes that the court of appeals’ judgment should be reversed.

IT IS THEREFORE ORDERED, in accordance with the Court’s opinion, that:

1) The court of appeals’ judgment is reversed;

2) The case is remanded to the court of appeals for further proceedings consistent with this Court’s opinion; and

3) Petitioners Randall Kallinen and Paul Kubosh shall recover, and Respondent City of Houston shall pay, the costs incurred in this Court.

Copies of this judgment and the Court’s opinion are certified to the Court of Appeals for the First District and to the District Court of Harris County, Texas, for observance.

Opinion of the Court delivered Per Curiam March 20, 2015

*********

IN THE SUPREME COURT OF TEXAS 444444444444

NO . 14-0015

444444444444

RANDALL KALLINEN AND PAUL KUBOSH, PETITIONERS, v.

THE CITY OF HOUSTON, RESPONDENT

4444444444444444444444444444444444444444444444444444 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS 4444444444444444444444444444444444444444444444444444

PER CURIAM

The Texas Public Information Act (“PIA”), Chapter 552 of the Texas Government Code, “guarantees access to public information, subject to certain exceptions.” Tex. Dep’t Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 114 (Tex. 2011). The PIA provides that when a governmental body receives a written request for information for which it wishes to claim an exception, it must timely seek a ruling from the Attorney General if the exception’s applicability to the requested information has not previously been determined. TEX . GOV ’T CODE § 552.301(a); see also id. § 552.301(g). But the PIA also provides that a requestor may sue to compel disclosure of the information. TEX . GOV ’T CODE § 552.321(a). In this case, the court of appeals held that a trial court lacks subject matter jurisdiction over such a suit until the Attorney General rules. 414 S.W.3d 815, 820 (Tex. App.—Houston [1st Dist.] 2013). We disagree.

Invoking the PIA, Randall Kallinen requested information from the City of Houston regarding a study of traffic light cameras it had commissioned. The City produced a large number of documents but withheld some and timely asked the Attorney General for an opinion on whether the PIA excepted the withheld information from disclosure. The PIA gives the Attorney General forty-five business days to issue opinions, though the time can be extended. TEX . GOV ’T CODE § 552.306(a). But before this time elapsed and before the Attorney General ruled, Kallinen sued for a writ of mandamus to compel the City to disclose the withheld information. The City moved to abate the lawsuit pending the Attorney General’s ruling, but the Attorney General closed his file when he was alerted to the suit. At the time, the Attorney General did not interpret the PIA to require an open records ruling on issues already in litigation. See Tex. Att’y Gen. OR2011-687 (citing Tex. Att’y Gen. OR1990-560 at 3 (declining to rule on sensitive information on the ground the issues should be resolved in the pending Texas prison litigation), and A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 671 (Tex. 1995) (noting in dicta that the Attorney General withdrew his opinion pending litigation on PIA questions)).

The City filed a plea to the jurisdiction, arguing that the court lacked jurisdiction over the suit until the Attorney General ruled. The district court overruled the plea, granted summary judgment for Kallinen, ordered disclosure of many of the withheld documents, and awarded Kallinen $175,664 in attorney fees through appeal to this Court.

The City complied with the order to disclose but appealed the attorney fee award. The parties agree that the only basis for the trial court’s jurisdiction is Section 552.321(a) of the PIA. That

3

provision, with subsections inserted in brackets for ease of reference, conditions the court’s exercise of jurisdiction as follows:

A requestor or the attorney general may file suit for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body [A] refuses to request an attorney general’s decision . . . or [B] refuses to supply [1] public information or [2] information that the attorney general has determined is public information that is not excepted from disclosure.

TEX . GOV ’T CODE § 552.321(a). The parties agree that conditions A and B2 do not apply. The court of appeals reasoned that condition B1 cannot apply when the governmental body is challenging whether an exception to disclosure applies because the information has not yet been determined to be public. 414 S.W.3d at 818. Accepting the City’s argument, the court stated that the Attorney General must determine whether information is subject to disclosure when asked to do so, that he has exclusive jurisdiction to make that determination in the first instance, that the requestor of information must exhaust all administrative remedies before suing, and that therefore a trial court’s jurisdiction over a requestor’s suit “only arises after the Attorney General has ruled.” Id. at 818–20.

The City’s position is flawed in several respects. First, it equates information that is public with information that has been determined by the Attorney General to be public, so that condition B2 swallows up condition B1. This violates a duty of statutory interpretation to “give effect to all the words of a statute and not treat any statutory language as surplusage if possible.” Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987).

Further, the City’s view of Section 552.321(a) would relegate mandamus relief to compelling a governmental body to request an Attorney General’s decision and then comply with it. The correctness of that decision would be unreviewable. But we have reviewed the Attorney General’s

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rulings. See Cox Tex. Newspapers, L.P., 343 S.W.3d at 113; In re City of Georgetown, 53 S.W.3d 328, 329–36 (Tex. 2001). And we have interpreted PIA exceptions without a ruling by the Attorney General. See City of Garland v. Dall. Morning News, 22 S.W.3d 351, 358–64 (Tex. 2000); A & T Consultants, Inc., 904 S.W.2d at 671, 674–81. The court of appeals’ interpretation ignores these cases.

The City argues, and the court of appeals held, that requestors of information should be required to exhaust their remedies in placing disputes before the Attorney General before resorting to the courts. But requestors have no such remedies. While the Attorney General may invite their arguments, they have no right to request or demand a ruling or disclosure from the Attorney General, and no right to an administrative appeal. See TEX . GOV ’T CODE § 552.304. Requestors cannot be required to finish something they have no right to start. The requirement that a governmental body seek a ruling from the Attorney General when withholding requested information is a check on the governmental body, not a remedy for the requestor to exhaust. And again, the City’s view of Section 552.321(a) would make the Attorney General’s ruling unreviewable.

The City argues that because information is generally “presumed to be subject to required public disclosure” when a governmental body fails to timely request an Attorney General’s ruling, TEX . GOV ’T CODE § 552.302, the information should not be considered public when a ruling is requested. But the premise cannot establish its converse. One may infer from a governmental body’s failure to request a ruling that the body is not claiming an exclusion, else it would advance its position in compliance with prescribed procedures. See TEX . GOV ’T CODE § 552.301. One

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cannot likewise infer that just because a governmental body properly seeks an Attorney General’s ruling, its exclusion claim must be correct.

The Attorney General advises in an amicus brief that he does not claim exclusive jurisdiction to decide open records issues. Consistent with that position, at the time of the City’s request for a ruling, as noted above, the Attorney General’s policy was not to rule on issues in litigation. See Tex. Att’y Gen. OR2011-687. In reversing that policy, he does not claim the authority to rule without court review.

A requestor of information certainly has the choice to await the Attorney General’s decision.

A governmental body may decide to release the requested information during the process and on receipt of an adverse opinion from the Attorney General. Efficiency may counsel patience. But the governmental body is entitled to insist on its position to a final ruling, see TEX . GOV ’T CODE § 552.324, and a requestor is not required to defer a suit for mandamus.

A court may decide, exercising sound discretion, to abate proceedings to await the Attorney General’s ruling. The Attorney General characterizes its authority as akin to primary jurisdiction, a prudential doctrine that applies when an agency is “staffed with experts trained in handling the complex problems in the agency’s purview” and there is a benefit to be “derived from [the] agency[] uniformly interpreting its laws, rules, and regulations.” Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). The Legislature has expressly charged the Attorney General with maintaining “uniformity in the application, operation, and interpretation” of the PIA, TEX . GOV ’T CODE § 552.011, and the Office of the Attorney General is experienced in interpreting and applying the subchapter C exceptions. If the court determines that under the circumstances of

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a particular case a decision from the Attorney General before adjudication of the merits of disclosure would be beneficial and any delay would not impinge on a requestor’s right to information, abatement would be within the court’s discretion.

The court of appeals erred in dismissing Kallinen’s suit for want of jurisdiction.

Accordingly, we grant the petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and remand to that court for further proceedings in accordance with this opinion. TEX . R. APP . P. 59.1.

Opinion issued: March 20, 2015

Tab J

COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER FOR SUPPLEMENTAL BRIEFING ON REMAND

Case name: City of Houston, Appellant v.

Randall Kallinen and Paul Kubosh, Appellees

Cause No. 01-12-00050-CV

This court is in receipt of the mandate of the Texas supreme court in this appeal. The parties may file supplemental briefing if they believe it will aid this court’s consideration of the issues on remand. The appellant’s supplemental brief is due by October 9, 2015. The appellees’ brief is due 30 days after the appellant’s brief is filed, or by November 9, 2015, whichever is later.

Judge’s signature: /s/ Jane Bland Jane Bland

Justice, acting individually

Date: September 3, 2015

Footnotes

1. NO. 01-12-00050-CV ——————————— CITY OF HOUSTON, Appellant V. RANDALL KALLINEN AND PAUL KUBOSH, Appellees On Appeal from the 295th District Court Harris County, Texas Trial Court Case No. 2008-75633 OPINION This interlocutory appeal arises from a suit for writ of mandamus brought under the Texas Public Information Act (“TPIA”). Randall Kallinen and Paul Kubosh (“appellees”) filed a mandamus suit against the City of Houston (“the City”) seeking the public disclosure of various documents requested regarding the