Copano NGL Services, LLC v. John Ashcraft, Individually and as Trustee for the John Ashcraft Family Trust 2012

• Court: Court of Appeals of Texas
• Decided: October 5, 2015
• Docket: 13-15-00342-CV
• Status: Published

Opinion

ACCEPTED 13-15-00342-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 10/5/2015 6:01:20 PM Dorian E. Ramirez CLERK

No. 13-15-00342-CV _____________________________________ FILED IN 13th COURT OF APPEALS Court of Appeals CORPUS CHRISTI/EDINBURG, TEXAS 10/5/2015 6:01:20 PM

Thirteenth District of Texas DORIAN E. RAMIREZ Clerk _____________________________________ COPANO NGL SERVICES, LLC, Appellant, V.

JOHN ASHCRAFT, INDIVIDUALLY AND AS TRUSTEE FOR THE JOHN ASHCRAFT FAMILY TRUST 2012, Appellee. _____________________________________ On Appeal from Cause No. 15-H-0082 23rd District Court, Matagorda County, Texas Hon. Ben Hardin, Judge Presiding

APPELLANT’S BRIEF

Charles R. “Skip” Watson, Jr. Christopher Dove State Bar No. 20967500 State Bar No. 24032138 cwatson@lockelord.com cdove@lockelord.com LOCKE LORD LLP Ken McKay 600 Congress Avenue, Suite 2200 State Bar No. 13690835 Austin, Texas 78701 kmckay@lockelord.com A. Antroy Arreola (512) 305-4700 (Telephone) State Bar No. 24006769 (512) 305-4800 (Facsimile) aarreo1a@1ocke1ord.com Harry Holmes Thompson State Bar No. 24088527 hthompson@1ocke1ord.com LOCKE LORD LLP 600 Travis Street, Suite 2800 Houston, Texas 77002 (713) 226-1200 (Telephone) (713) 223-3717 (Facsimile) ATTORNEYS FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL

Parties to the Proceeding Counsel

Copano NGL Services, LLC, Charles R. “Skip” Watson, Jr. Appellant State Bar No. 20967500 cwatson@lockelord.com LOCKE LORD LLP 600 Congress Avenue, Suite 2200 Austin, Texas 78701 (512) 305-4700 (Telephone) (512) 305-4800 (Facsimile)

Christopher Dove State Bar No. 24032138 cdove@lockelord.com LOCKE LORD LLP 600 Travis Street, Suite 2800 Houston, Texas 77002 (713) 226-1200 (Telephone) (713) 223-3717 (Facsimile) Appellate Counsel

Ken McKay State Bar No. 13690835 kmckay@lockelord.com A. Antroy Arreola State Bar No. 24006769 aarreo1a@1ocke1ord.com Harry Holmes Thompson State Bar No. 24088527 hthompson@1ocke1ord.com LOCKE LORD LLP 600 Travis Street, Suite 2800 Houston, Texas 77002 (713) 226-1200 (Telephone) (713) 223-3717 (Facsimile) Trial and Appellate Counsel

ii Parties to the Proceeding Counsel

John Ashcraft, Individually and as John T. McDowell Trustee for the John Ashcraft Family State Bar No. 13570850 Trust 2012, jtm@houstontrialattorneys.com Appellee Kacy J. Shindler State Bar No. 24088407 ks@houstontrialattorneys.com MCDOWELL WELLS, LLP 603 Avondale Street Houston, Texas 77006 (713) 655-9595 (Telephone) (713) 655-7868 (Facsimile)

Danny Shindler dwshindler@sbcglobal.net MCDOWELL WELLS, LLP State Bar No. 18266200 2232 Avenue G Bay City, Texas 77414 (979) 245-4666 (Telephone) (979) 244-5342 (Facsimile)

Vincent L. Marable III PAUL WEBB, P.C. State Bar No. 12961600 trippmarable@sbcglobal.net 221 N. Houston Wharton, Texas 77488 (979) 532-5331 (Telephone) (979) 532-2902 (Facsimile) Trial and Appellate Counsel

iii TABLE OF CONTENTS

Page

Identity of Parties and Counsel ................................................................................. ii Index of Authorities ..................................................................................................vi Statement of the Case................................................................................................. 1 Statement Regarding Oral Argument ........................................................................ 2 Issues Presented ......................................................................................................... 2 Statement of Facts ...................................................................................................... 3 Summary of the Argument......................................................................................... 6 Brief of the Argument ................................................................................................ 7 I. Copano’s Objections Were Timely Filed, Invoking the District Court’s Jurisdiction.......................................................................................... 7 A. The statutes that frame jurisdiction tolled the time for filing objections. ...................................................................................................7 B. The deadline for making jurisdiction-triggering objections to the commissioner’s award does not begin until the clerk complies with Section 21.049. ...........................................................................................9 C. Courts cannot vary the form of notice mandated by the Legislature for triggering the district court’s jurisdiction. ..........................................10 D. Liberal construction cannot rewrite the statute or its requirements. ........13 II. Findings of Fact and Conclusions of Law Are Not Only Immaterial, They Are Erroneous....................................................................................... 15 Conclusion and Prayer ............................................................................................. 17 Certificate of Compliance ........................................................................................ 19 Certificate of Service ............................................................................................... 19

iv Appendix 1. Final Judgment without attachments (CR:151-53) 2. Findings of Fact & Conclusions of Law (SCR:17-22) 3. TEX. PROP. CODE § 21.018 4. TEX. PROP. CODE § 21.049 5. TEX. PROP. CODE § 21.061

v INDEX OF AUTHORITIES

Page(s) CASES Am. Mut. Liability Ins. Co. v. Parker, 144 Tex. 453, 191 S.W.2d 844 (Tex. 1945) ....................................................... 16

Black v. Shor, 443 S.W.3d 154 (Tex. App.—Corpus Christi-Edinburg 2013, pet. denied) .......... ....................................................................................................................... 16, 17

Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121 (Tex. 1991) .............................................................................. 13

Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (Tex. 1971) .............................................................................. 12

First Nat’l Bank in Graham v. Sledge, 653 S.W.2d 283 (Tex. 1983) .............................................................................. 10

Greater Houston P’ship v. Paxton, --S.W.3d--, No. 13-0745, 2015 WL 3978138 (Tex. June 26, 2015) .................. 14

Guest v. Dixon, 195 S.W.3d 687 (Tex. 2006) .............................................................................. 13

IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997) ........................................................................15, 17

John v. State, 826 S.W.2d 138 (Tex. 1992) .......................................................................... 9, 10

Oncor Elec. Delivery Co. v. Schunke, No. 04-13-00067-CV, 2013 WL 6672494 (Tex. App.—San Antonio Dec. 18, 2013, pet dism’d) ....................................................................................10, 15

Roccaforte v. Jefferson County, 341 S.W.3d 919 (Tex. 2011) .............................................................................. 13

Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934 (Tex. 1983) .............................................................................. 10

vi State v. Titan Land Dev., Inc., No. 01-14-00899-CV, 2015 WL 3637982 (Tex. App.—Houston [1st Dist.] June 11, 2015, pet. filed) .......................................................................... 14

Tex. Dep’t of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (Tex. 2013) ................................................................................ 9

CONSTITUTION AND STATUTES TEX. PROP. CODE § 21.012 ......................................................................................... 3

TEX. PROP. CODE § 21.014 ......................................................................................... 3

TEX. PROP. CODE § 21.018 ................................................................................passim

TEX. PROP. CODE § 21.018(a) .................................................................................... 8

TEX. PROP. CODE § 21.049 ................................................................................passim

TEX. PROP. CODE § 21.061 ..................................................................................... 5, 8

vii TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

This appeal is from a judgment dismissing Appellant Copano NGL Services,

LLC’s appeal to district court from a special commissioners’ condemnation award.

It raises the critical issue of district court jurisdiction that turns on the proper

application of a statute enacted to ensure the timeliness of objections filed to

invoke jurisdiction over commissioners’ decisions. That important issue arose in

the following context:

STATEMENT OF THE CASE

A pipeline constructed by Copano required land held by Appellee John

Ashcraft, individually and as trustee of the John Ashcraft Family Trust 2012.

(CR:4.) Copano’s petition to condemn the land was assigned to the 23rd District

Court of Matagorda County, Texas, the Honorable Ben Hardin presiding.

On April 21, 2015, the special commissioners’ award was filed with the trial

court, but it took until May 27 for the clerk to mail the notice in the manner

required by TEXAS PROPERTY CODE § 21.049. (CR:29, 93.) Copano timely

objected to the award on May 19. (CR:91.) But, Ashcraft moved for entry of

judgment on the award, arguing that the May 19 objections were untimely and the

trial court must adopt the Special Commissioners’ award as its judgment. (CR:94.)

The trial court entered judgment on the award (CR:151), necessitating this

appeal. (CR:205.) STATEMENT REGARDING ORAL ARGUMENT

Copano believes the mistaken statutory construction that resulted in the

denial of jurisdiction over an administrative award for property taken by

condemnation merits full discussion of the issues and opportunity to address this

court’s questions.

ISSUES PRESENTED

The Supreme Court has consistently held that the Legislature enacted

Section 21.049 of the Texas Property Code to toll the time prescribed by Section

21.018 for parties to file objections that trigger a district court’s jurisdiction over

an appeal from a special commissioners’ decision in a condemnation. It has also

held that Section 21.049’s specific requirement (that “[n]ot later than the next

working day after the [commissioners’] decision is filed, the clerk shall send notice

of the decision by certified or registered United States mail … to the parties in the

proceeding, or to their attorneys of record”) is “mandatory” and must be strictly

complied with before the time for objections can begin to run. The provision must

be interpreted to promote, rather than limit, the parties’ right to appeal.

1. Did the district court err in entering judgment on the special commissioners’ award, and dismissing Copano’s appeal, even though Copano’s objections to the award were filed prior to 20 days after the clerk gave the requisite notice by certified mail?

2 2. Can filing findings of fact and conclusions of law in the absence of an evidentiary hearing, disputed facts, or evidence, alter an error of law in dismissing an appeal from a commissioners’ award for want of jurisdiction, and entering judgment on the award instead?

STATEMENT OF FACTS

This appeal presents a pure question of law: whether Copano timely filed its

objections to the special commissioners’ award. The facts forming the context for

this legal question are straightforward.

The Copano Sweeny NGL Pipeline will transport natural gas liquids twenty-

three miles from the Eagle Ford Shale to purchasers and processors in Sweeny,

Texas. (CR:5-6.) Copano will own and operate the pipeline. (Id.) The pipeline

required a narrow easement across Ashcraft’s property that totaled about eight

acres. (CR:7-9, 16.)

Copano and Ashcraft disagreed about the easement’s value, so Copano

exercised its power of eminent domain by filing a petition for condemnation under

TEXAS PROPERTY CODE § 21.012. (CR:5.) The district court appointed special

commissioners to value the easement as required by Tex. Prop. Code § 21.014.

(CR:24.) On April 21, 2015, the special commissioners issued their award of well

over a million dollars for the eight acre easement. (CR:31.)

3 The Texas Property Code sets forth what must happen next. Section 21.049

requires two things. First, the judge hearing the case must inform the clerk of the

special commissioners’ decision within one working day after the decision is filed.

Second, the clerk must immediately mail notice of the award to the parties by

certified or registered United States mail, return receipt requested:

Not later than the next working day after the day the decision is filed, the clerk shall send notice of the decision by certified or registered United States mail, return receipt requested, to the parties in the proceeding, or to their attorneys of record, at their addresses of record.

TEX. PROP. CODE § 21.049. Here, the clerk’s office failed to discharge that duty.

The duties are important because a party may appeal from the

commissioners’ findings by filing a statement of its objections under Texas

Property Code § 21.018.

On the day the special commissioners issued their award, April 21, 2015,

Copano electronically filed the award with the district clerk. (CR:29.) Copano

specifically reminded the clerk of its duty to mail notice in the manner required by

Texas Property Code § 21.049:

(Id.)

4 But the clerk’s office did not mail the award until May 27, 2015, more than a

month later. (CR:93.)

Copano filed its objections early – on May 19, 2015. (CR:91.) Thus, the

trial court should have proceeded to “try the case in the same manner as other civil

causes,” as required by Section 21.018(b).

But, notwithstanding Section 21.049 Ashcraft filed a Motion for Entry of

Judgment claiming that the deadline for objections was actually May 18 under

Section 21.018. (CR:94.) Ashcraft asserted that the district court had to “adopt the

commissioners’ findings as the judgment of the court” (Id.; see TEX. PROP. CODE

§ 21.061.) The motion for judgment dealt with the clerk’s delay, which tolled the

deadine for objections, by ignoring it. (CR:94.)

Copano’s response pointed out that the Supreme Court held that a clerk’s

delay in mailing the notice tolls the deadline for objections, and that even actual

notice of the award provides no exception to this mandatory tolling rule.

(CR:118.) Nevertheless, the trial court entered judgment on the special

commissioners’ award. (CR:151.) Copano timely appealed. (CR:205.)

After Copano appealed to this Court, Ashcraft raised new and untested

arguments about the effect of Copano’s electronic filing of the special

commissioners’ award by proposing findings of fact and conclusions of law.

(SCR:4-12.) Copano objected to the request because findings and conclusions may

5 not be entered in cases where no evidentiary hearing was held, and because

Ashcraft sought to inject new legal theories after judgment was entered. (SCR:23.)

The trial court did not hold an evidentiary hearing on Ashcraft’s Motion for

Entry of Judgment, nor did Ashcraft proffer evidence in support of its motion

(CR:94), no doubt because the only material relevant “facts” are undisputed and

ministerial – the date when the special commissioners’ award was filed, the date

when the clerk mailed that award to the parties, and the date Copano filed its

objections. (SCR:9.) But the trial court signed the findings and conclusions

proposed by Ashcraft, without changing a word. (SCR:17.)

SUMMARY OF THE ARGUMENT

The trial court denied Copano’s statutory right of a trial de novo to appeal

the special commissioners’ condemnation award. That error was based on the trial

court’s failure:

(i) to follow Supreme Court precedent tolling the due date for filing jurisdiction-triggering objections to the award (that has guided litigants since 1992); and

(ii) to understand that the Legislature enacts statutes containing mandatory provisions that set forth the precise type of notice that must be given to trigger district courts’ jurisdiction over condemnation awards and the critical difference between their mandatory notice requirements and:

− actual notice; or

− notice of an e-filing.

6 Instead, the trial court wrongly determined that the Legislature’s mandatory,

party-neutral requirement that the clerks send notice by certified mail was enacted

solely to benefit landowners.

That series of errors has denied Copano access to the courts and due process

guaranteed by our Constitution and statutes, as consistently interpreted by our

Supreme Court. It requires swift reversal.

BRIEF OF THE ARGUMENT

Jurisdiction over a judicial review of an administrative determination –

especially when it involves taking of and compensation for property – cannot be

taken lightly. Here, the district court interpreted the Supreme Court’s construction

of a jurisdiction-tolling statute that was enacted to encourage appeals, to achieve

the opposite result. It refused jurisdiction that the Legislature enacted a statute to

ensure.

I. Copano’s Objections Were Timely Filed, Invoking the District Court’s Jurisdiction.

A. The statutes that frame jurisdiction tolled the time for filing objections.

The trial court’s jurisdiction over a commissioners’ award is governed by the

following.

First, Section 21.049 requires two actions immediately upon the trial court’s

receipt of the commissioners’ report containing their decision:

7 (i) “The judge of a court hearing a proceeding under this chapter shall inform the clerk of the court as to a decision by the special commissioners on the day the decision is filed or on the next working date after the day the decision is filed.”

(ii) “Not later than the next working day after the day the decision is filed, the clerk shall send notice of the decision by certified or registered United States mail, return receipt requested, to the parties in the proceeding, or to their attorneys of record, at their addresses of record.”

TEX. PROP. CODE § 21.049 (emphasis added).

Second, a party’s written statement of its objections to the award “must be

filed on or before the first Monday following the 20th day after the day the

commissioners’ file their findings with the court.” TEX. PROP. CODE § 21.018(a).

Timely notice by the clerk of the commissioners’ decision in the form prescribed

by the Legislature is therefore critical because the trial court must enter “the

commissioners’ findings as the judgment of the court” unless the parties timely

object to the commissioners’ report. TEX. PROP. CODE § 21.061.

The question of law that the district court got wrong is whether the clerk’s

failure to comply with Section 21.049’s precise requirement of notice by certified

mailing tolls the deadline in Section 21.018. The Supreme Court definitively has

answered that question.

8 B. The deadline for making jurisdiction-triggering objections to the commissioner’s award does not begin until the clerk complies with Section 21.049.

The Supreme Court has repeatedly answered the question by holding that the

notice required by the Legislature in Section 21.049 is “mandatory.” John v. State,

826 S.W.2d 138, 140 & n.3 (Tex. 1992). That means the “time to object” to the

special commissioners’ award “is tolled until the clerk sends the required notice

pursuant to section 21.049.” Id. at 141 (emphasis added).

The requirement is mandatory for jurisdiction over appeals by all parties,

even though John spoke in terms of tolling the time for the landowner’s objections.

The Court subsequently made it clear that the “time for making objections” that

trigger the trial court’s jurisdiction is tolled “if the parties are not given proper

notice” as required by Section 21.049. Tex. Dep’t of Transp. v. A.P.I. Pipe and

Supply, LLC, 397 S.W.3d 162, 167 n.18 (Tex. 2013) (emphasis added) (citing

John, 826 S.W.2d at 141 n.5). The Supreme Court has never varied from

construing Section 21.049’s clerk’s notice by certified mail requirement as tolling

the time allotted by the more general statute, Section 21.018, until the clerk sends

“proper” notice in the form prescribed by the Legislature.

9 C. Courts cannot vary the form of notice mandated by the Legislature for triggering the district court’s jurisdiction.

1. Actual notice will not suffice.

Courts are bound by the Legislature’s requirement. Thus, not even actual

notice by a clerk personally handing a party’s attorney “a file-stamped copy of the

notice” of the commissioners’ decision will be allowed to substitute for Section

21.049’s requirement that the clerk give notice by certified mail. Oncor Elec.

Delivery Co. v. Schunke, No. 04-13-00067-CV, 2013 WL 6672494, *3 (Tex.

App.—San Antonio Dec. 18, 2013, pet. dism’d).

A mandatory notice statute means that it must be strictly applied. See

Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 936-38 (Tex. 1983). By

contrast, when a statute’s notice requirement can be satisfied by actual notice, it

says so. See, e.g., First Nat’l Bank in Graham v. Sledge, 653 S.W.2d 283, 287

(Tex. 1983). Thus, actual knowledge of an award by an attorney filing it and

receiving a file-stamped copy from the clerk will not satisfy the clerk’s duty to

give “proper” statutory notice by mailing the notice of decision as required by

Section 21.049. Oncor at *3-4.

Equally important, in Oncor the court also recognized that parties are

“entitled to rely on the rule articulated in John” in calculating the time for filing

their objections to the award. Id. at *4. That has been the law since John was

decided in 1992, and that is what Copano did here.

10 2. E-filing will not suffice.

After this appeal was filed, Ashcraft sought to raise an equally unavailing

theory by going beyond the record for findings and conclusions regarding notice

by e-filing. But if being handed a file-stamped copy of the award does not satisfy

the clerk’s “mandatory” duty to immediately give notice by certified mail, an

electronic notice of filing will hardly suffice for proper compliance. Thus, the trial

court’s belated finding of notice by e-filing cannot save the judgment for three

independent reasons.

First, the clerk’s office, having been specifically cautioned of its duty to

mail the award to the parties, performed that duty on May 27, 2015, indicating that

the clerk’s office knew that its duty had to be performed via the U.S. mail.

Second, there is no evidence that the commissioners’ decision containing

their award was “e-mailed” to Copano’s counsel on April 21, or any other day.

(Copano believes that a hearing would have established that the clerk has no record

of emailing notice.)

And if “emailing” is referring to e-filing the award, there is again no

evidence when or even if the file-marked award was electronically sent to

Copano’s counsel. Instead, the argument reflects a fundamental misunderstanding

of the process, which, again, is not in the record:

11 Within minutes of e-filing the award, a “filing-submitted” reply transmits the

fact of filing, but not a copy of what was filed. Thus, a file-stamp on a document

subsequently accepted for filing does not mean the document was actually

returned that day. The same procedure applies to a later “filing accepted”

electronic reply, though it supplies a link to a file-stamped copy on the

eFile.Texas.gov server.

Neither is of record, though Copano believes the trial court’s electronic

docket would show the “e-filing” was not “accepted” until May 1. That means that

even if access to a link showed for the first time on May 1, that Copano’s filing

was “accepted” the availability of a link cannot substitute for the mandatory

statutory requirement of certified mail. But even if a “filing accepted” notice could

be substituted for the Legislature’s mandatory certified mail notice provision

(which it cannot), Copano’s May 19 filing would be timely even under Ashcraft’s

belated theory.

Third, courts cannot by rule negate or alter statutory requirements enacted

by the Legislature. The Supreme Court always recognizes that its rule-making

power is limited to establishing rules and procedures “not inconsistent with the law

of the State” by former Art. V, Sec. 25 of the Texas Constitution. Thus, “when a

rule of the court conflicts with a legislative enactment, the rule must yield.” Few v.

Charter Oak Fire Ins. Co., 463 S.W.2d 424, 425 (Tex. 1971).

12 As a result, neither Section 21.049’s certified mailing requirement, nor its

tolling of Section 21.018’s filing deadline, can be repealed or altered by Rule 21’s

electronic filing and service provisions any more than Rule 21a’s personal service

provision could alter it.

Thus, Legislative tolling until mandatory statutory requirements are satisfied

cannot be circumvented by hand delivery or service by access to e-filing links.

The mandatory requirement of Section 21.049 was not satisfied until after

Copano’s objections were timely filed.

D. Liberal construction cannot rewrite the statute or its requirements.

Ultimately Ashcraft must rely on liberal construction in favor of the

landowner to rewrite both the Legislature’s clear notice by certified mail

requirement in Section 21.049 and the Supreme Court’s consistent interpretation of

that requirement. That argument for denying jurisdiction over Copano’s appeal

flounders in two fundamental ways.

First, the goal of liberal construction is to ensure that “the right of appeal

should not be lost due to procedural technicalities.” Roccaforte v. Jefferson

County, 341 S.W.3d 919, 924 (Tex. 2011) (citing Guest v. Dixon, 195 S.W.3d 687,

688 (Tex. 2006); Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121-22

(Tex. 1991) (liberal construction requires “decisions of the courts of appeals turn

on substance rather than procedural technicality”)).

13 Ashcraft and the trial court missed the point of why statutes are liberally

construed – to ensure jurisdiction over appeals, not to deny it. See, e.g., State v.

Texas Titan Land Dev., Inc., No. 01-14-00899-CV, 2015 WL 3637982, at *5 (Tex.

App.—Houston [1st Dist.] June 11, 2015, pet. filed) (holding that under liberal

construction, Section 21.018’s time requirement is determined by the “mandatory”

mailing requirement in Section 21.049, and may not logically reduce the State’s

time to object to an award, requiring reversal of the dismissal of the State’s

appeal).

Indeed, it makes no sense for a party benefitting from liberal construction

designed to enable an appeal, to turn around and use it to prevent an appeal.

Liberal construction cannot eliminate a tolling statute that grants a right of appeal

to both parties.

Second, liberal construction “must remain grounded in the statute’s

language.” Greater Houston P’ship v. Paxton, --S.W.3d--, No. 13-0745, 2015 WL

3978138, at *8 (Tex. June 26, 2015). It is not “tantamount to boundless reach.”

Id. at *12. Instead, like “any other extra-textual construct,” liberal construction

must yield to “plain and unambiguous language.” Id.

That is what we have here – plain and unambiguous language requiring

notice by certified mail to all “parties,” that is consistently interpreted by the

Supreme Court to require tolling the jurisdiction window for objecting to

14 commissioners’ awards. The goals of the Legislature and the Court are the same –

reaching the merits of a party’s appeal of a condemnation award.

To sum up, Ashcraft is asking this Court to make law by ignoring Supreme

Court holdings that the deadline for filing objections is tolled until the clerk

complies with the mandatory provisions of Section 21.049 by giving notice by

certified mail. Here as in Oncor the parties had every right to rely on both the

Legislature’s mandatory provision and Supreme Court precedent construing it.

The district court erred in entering judgment on the commissioners’ findings. It

must be reversed so Copano can have its day in court.

II. Findings of Fact and Conclusions of Law Are Not Only Immaterial, They Are Erroneous.

Rather than supporting Ashcraft’s judgment, the trial court’s immaterial and

erroneous findings of fact and conclusions of law reveal instead that when

jurisdiction is decided as a pure question of law, findings and conclusions cannot

be made in the absence of evidentiary hearings, let alone absent evidence of

disputed facts. They create a false illusion of resolving facts when none were

heard or needed to be decided.

Thus, where the trial court renders judgment without an evidentiary hearing,

“findings and conclusions have no purpose and should not be requested, made, or

considered on appeal.” IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d

440, 442-43 (Tex. 1997). “Therefore, even when the trial court receives evidence,

15 findings and conclusions are only appropriate if the trial court is called upon to

determine questions of fact upon conflicting evidence.” Black v. Shor, 443 S.W.3d

154, 166 (Tex. App.—Corpus Christi-Edinburg 2013, pet. denied) (emphasis

added).

Ashcraft requested findings and conclusions after this appeal was perfected

for the illegitimate purpose of raising new arguments to shore-up a teetering

judgment. Ashcraft’s motion for entry of judgment gave no explanation for why

the clerk’s delay had not tolled the objection deadline. (CR:94.) As recounted in

Copano’s objections,1 Ashcraft’s only argument had been that Copano’s receipt of

a hand-delivered paper copy was sufficiently similar to “certified or registered

United States mail, return receipt requested” to prevent tolling. (CR:24.) After

judgment was entered, Ashcraft apparently saw that its arguments cannot support

its judgment. But proposing new findings and conclusions on equally unavailing

arguments about the effect of Copano’s electronic filing of the award cannot save

this judgment. (Id.)

The entire purpose of that exercise was illegitimate. Texas law has long

recognized that “an appellate court should not decide a case upon a theory different

from that upon which it was pleaded and tried.” Am. Mut. Liability Ins. Co. v.

Parker, 144 Tex. 453, 460, 191 S.W.2d 844, 848 (Tex. 1945). 1 The parties discussed the motion with the trial judge, but no evidentiary hearing was held, and no transcript was taken.

16 In sum, the findings and conclusions were improper and cannot support the

trial courts’ error of law in entering judgment and dismissing Copano’s appeal.

They must not be considered by this Court. IKB, 938 S.W.2d at 443; Black, 443

S.W.3d at 166. The erroneous judgment must be reversed.

CONCLUSION AND PRAYER

The trial court was led into error that denied Copano its right to appeal the

commissioners’ decision to the district court. Copano’s objections were timely

filed both as a matter of law and of sound public policy enacted by the Legislature.

Accordingly, Appellant, Copano NGL Services, LLC, respectfully prays that

the Honorable Court of Appeals reverse the judgment of the district court and

remand for trial with Appellant receiving its costs at trial and on appeal, and all

other relief it is entitled to receive consistent with the opinion of this Court.

Respectfully submitted,

LOCKE LORD LLP

By: /s/ Charles R. “Skip” Watson, Jr. Charles R. “Skip” Watson, Jr. State Bar No. 20967500 cwatson@lockelord.com 600 Congress Avenue, Suite 2200 Austin, Texas 78701 (512) 305-4700 (Telephone) (512) 305-4800 (Facsimile)

Christopher Dove State Bar No. 24032138 cdove@lockelord.com

17 Ken McKay State Bar No. 13690835 kmckay@lockelord.com A. Antroy Arreola State Bar No. 24006769 aarreo1a@1ocke1ord.com Harry Holmes Thompson State Bar No. 24088527 hthompson@1ocke1ord.com LOCKE LORD LLP 600 Travis Street, Suite 2800 Houston, Texas 77002 (713) 226-1200 (Telephone) (713) 223-3717 (Facsimile)

COUNSEL FOR APPELLANT

18 CERTIFICATE OF COMPLIANCE

I certify that this Appellant’s Brief contains 3,201 words (excluding the

sections excepted under Texas Rule of Appellate Procedure 9.4(i)(1)).

/s/ Charles R. “Skip”Watson, Jr. Charles R. “Skip” Watson, Jr.

CERTIFICATE OF SERVICE

I hereby certify that on October 5, 2015, a true and correct copy of the

foregoing was served via EFileTx.Gov e-service upon the following:

Vincent L. Marable III John T. McDowell trippmarable@sbcglobal.net jtm@houstontrialattorneys.com PAUL WEBB, P.C. Kacy J. Shindler 221 N. Houston ks@houstontrialattorneys.com Wharton, Texas 77488 MCDOWELL WELLS, LLP (979) 532-5331 (Telephone) 603 Avondale Street (979) 532-2902 (Facsimile) Houston, Texas 77006 (713) 655-9595 (Telephone) (713) 655-7868 (Facsimile) Danny Shindler dwshindler@sbcglobal.net MCDOWELL WELLS, LLP 2232 Avenue G Bay City, Texas 77414 (979) 245-4666 (Telephone) (979) 244-5342 (Facsimile)

Counsel for Appellee

/s/ Charles R. “Skip” Watson, Jr. Charles R. “Skip” Watson, Jr.

19 No. 13-15-00342-CV _____________________________________

Court of Appeals Thirteenth District of Texas _____________________________________

COPANO NGL SERVICES, LLC, Appellant, V.

JOHN ASHCRAFT, INDIVIDUALLY AND AS TRUSTEE FOR THE JOHN ASHCRAFT FAMILY TRUST 2012, Appellee. _____________________________________ On Appeal from Cause No. 15-H-0082 23rd District Court, Matagorda County, Texas Hon. Ben Hardin, Judge Presiding

APPENDIX

Tab 1. Final Judgment (CR:151-53) 2. Findings of Fact & Conclusions of Law (SCR:17-22) 3. TEX. PROP. CODE § 21.018 4. TEX. PROP. CODE § 21.049 5. TEX. PROP. CODE § 21.061 NO. 15-H-0082

COPANO NGL SERVICES LLC, IN THE DISTRICT COURT Plaintiffl

.< MATAGORDA COUNTY, TEXAS JOHN ASHCRAFT, INDIVIDUALLY <fl><fl'I€l7J<00¢00¢2U#<flJ<fl><fl>€fl>C00

AND AS TRUSTEE FOR THE JOHN ASHCRAFT FAMILY TRUST Defendant 23RD JUDICIAL DISTRICT FINAL JUDGMENT Be it remembered that John Ashcraft, Individually and as Trustee for the John Ashcraft

2012 Family Trust is the owner of the real property that Copano NGL Services LLC is

condemning and acquiring under and by virtue of these condemnation proceedings. The

permanent and temporary easements the subject of this proceeding are more specifically

described in Copano’s Original Petition for Condemnation and described in Exhibit “A” attached

hereto (the “Easements”).

The Award of Special Commissioners in this case was executed and signed by the three

Special Commissioners on April 21, 2015. The Award of Special Commissioners was filed with

the Matagorda County District Clerk by Copano on April 21, 2015. The Award of Special

Commissioners is attached to this Final Judgment as Exhibit “B”. The Award of Special

Commissioners provides, in part, as follows:

After hearing and considering such evidence, the undersigned Special Commissioners find, determine, and assess damages to be paid by Copano Services LLC for this NGL condemnation, according to the statute pertaining to assessment of such damages that is set forth at Section 21.042 of the Texas Property Code, in the total amount of: one million forty three thousand eight hundred thirty and no cents ($1,043,830.00) to Defendant. No objections to the Award were filed on or before the first Monday following the 20th

day after the Award was filed as mandated by Tex. -Prop. Code § 21.018. Defendants John

Ashcraft, Individually and as Trustee for the John Ashcraft 2012 Family Trust filed a Motion for

Entry of Judgment. The Court, having considered the Motion for Entry of Judgment, Plaintiffs

response and argument of counsel has determined that Defendants’ Motion is meritorious and

should be granted.

It is ORDERED, ADJUDGED and DECREED that the findings in the Award of Special

Commoners are adopted as the judgment of this court.

It is further ORDERED, ADJUDGED and DECREED that the Award of Special

Commissioners be recorded with thisjudgment in the minutes of this court.

It is ORDERED, ADJUDGED and DECREED that Defendants, John Ashcraft,

Individually and as Trustee for the John Ashcraft 2012 Family Trust, have judgment against and

recover from Copano NGL Services LLC, the sum of one million forty three thousand eight

hundred and thirty dollars ($1,043,830.00), which shall bear post-judgment interest at 5% compounded annually beginning on the date this judgment is signed.

It is ORDERED, ADJUDGED and DECREED that Copano NGL Services LLC, recover

from the Defendants, John Ashcraft, Individually and as Trustee for the John Ashcraft 2012

Family Trust, a fifty-foot (50') wide non-exclusive permanent right-of-way and temporary

easement more specifically described in Exhibit “A” attached hereto, in and to that certain

property situated in Matagorda County, Texas described in the incorporated Award of

Commissioners, and the same is vested in Copano NGL Services LLC. It is ORDERED, ADJUDGED and DECREED that all costs of court are taxed against

Copano NGL Services, LLC, plaintiff. All writs and process as may be necessary in the

2 enforcement and collection of this judgment and the costs of court may issue.

This is a final, appealable judgment.

SIGNED , 2015.

‘ JUDGE PRESIDING

APPROVED AS TO FORM: MCDOWELL WELLS, LLP QNHFS /s/John T.McDowell John T. McDowell SBN 13570850 jtm@houstontrialattorneys.com Kacy J. Shindler "LED SBN 24088407 .

at'i:_..“fioIock.F_-__M. ks@houst0ntrialatt0rneys.com 603 Avondale Street JUN 2 4 Z015 Houston, Texas 77006 Telephone: (713) 655-9595 Ja.m,i_e_G-£%11!2@142_2.:_2 2

Facsimile: (713) 655-7868 Clerk of Dl§tr% atagorda Co., Texas DEPUTY

Danny Shindler SBN: 18266200 dwshindler@sbcgl0bal.net 2232 Avenue G Bay City, TX 77414 Telephone: 979-245-4666 Facsimile: 979-244-5342

PAUL WEBB, P.C. Vincent L. Marable III State Bar No. 12961600 221 N. Houston Wharton, Texas 77488 Telephone: (979) 532-5331 Facsimile: (979) 532-2902 ATTORNEYS FOR DEFENDANTS John Ashcraft, Individually and as Trustee of the John Ashcraft 2012 Family Trust

3 MN-ICU at &go' cfock AUG 1 0 2015 NO. 15-H-0082

COPANO NGL SERVICES LLC, IN THE DISTRICT COURT OF

Plaintiff,

V. S MATAGORDA COUNTY, TEXAS

JOHN ASHCRAFT, INDIVIDUALLY AND AS TRUSTEE FOR THE JOHN ASHCRAFT FAMILY TRUST 2012, S

Defendants. S 23" JUDICIAL DISTRICT

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On June 24, 2015, this Court signed a final judgment in favor of

Defendants John Ashcraft, Individually and as Trustee for the John Ashcraft

Family Trust 2012 ("Ashcraft"). Ashcraft requested that this Court make

findings of fact and conclusions of law on July 9, 2015. The final judgment

rendered by this Court on June 24, 2015, was made in accordance with

Section 21.061 of the Texas Property Code, following a hearing conducted on

June 15, 2015. The findings of fact made by this Court are based on

stipulations of the parties at the June 15, 2015, hearing conducted in this

case and this Court's judicial notice of the district clerk's file in this matter.

I. FINDINGS OF FACT

1. Plaintiff COPANO NGL SERVICES LLC ("Copano"), filed via a-file its Petition for Condemnation on March 4, 2015. 2. An Order Appointing Special Commissioners was signed on March 16, 2015.

3. An Order Striking Special Commissioner and Replacing With First Alternate was signed on April 1, 2015.

4. On April 21, 2015, the Special Commissioners made an award to Ashcraft of one million forty-three thousand eight hundred thirty dollars ($1,043,830.00).

5. Copano offered to file the award of the Special Commissioners with the district clerk.

6. Copano filed the Special Commissioners' Award with the district clerk via e-file on April 21, 2015,

7. Copano received notice of its filing electronically on April 21, 2015, from the Matagorda County District Clerk.

8. Copano had notice of the filing of the Special Commissioners' award on April 21, 2015.

9. The Matagorda County District Clerk sent notice of the decision by the Special Commissioners to Copano and Ashcraft by e-mail on April 21, 2015, and Copano and Ashcraft received such e-mail notice on April 21, 2015.

10. Copano filed its objection to the Special Commissioners' Award on May 19, 2015.

11. Ashcraft filed Defendants' Motion for Entry of Judgment on June 9, 2015, asserting that Defendants were entitled to judgment in accordance with Section 21.049 of the Texas Property Code because no timely objection was made to the findings of the Special Commissioners by May 18, 2015.

2 II. CONCLUSIONS OF LAW

1. Section 21.018(a) of the Texas Property Code fixes the objections deadline to the findings of the Special Commissioners as "the first Monday following the 20th day after the commissioners file their findings with the court."

2, The statutory deadline to file timely objections to the findings of the Special Commissioners was May 18, 2015. See Tex. Prop. Code Section 21.018.

3. No party filed a timely objection to the findings of the Special Commissioners.

4. Copano admitted to notice of the filing of the Special Commissioners' award with the Matagorda County District Clerk and to knowledge of the statutory deadline to file objections to the findings of the Special Commissioners.

5. Copano did not timely file an objection to the findings of the Special Commissioners by May 18, 2015, and intentionally waited until after May 18, 2015, to file its objection, to see if Ashcraft intended to object to the findings of the Special Commissioners.

6. The timely filing of objections to the findings of the Special Commissioners converts an "administrative" matter into a judicial one. City of Tyler v. Beck, 196 S.W.3d 784, 786 (Tex. 2006).

7 Without timely objections to the findings of the Special Commissioners, the trial court does not have jurisdiction to entertain an "appeal" of the Special Commissioners' award and must instead terminate the case by rendering judgment "on the award" as a matter of ministerial duty. Pearson v. State, 315 S.W.2d 935, 938 (Tex. 1958).

8. The Legislature has codified this principle in Property Code Section 21.061: "If no party in a condemnation proceeding files timely objections to the findings of the special commissioners, the

3 judge of the court that has jurisdiction of the proceeding shall adopt the commissioners' findings as the judgment of the court." Tex. Prop. Code Section 21.061. (emphasis supplied)

9. Sections 21.018(a) and 21.061 of the Texas Property Code limit the jurisdiction of the trial court when timely objections are not filed.

10. The Legislature has chosen not to create any statutory exceptions to the operation of Sections 21.018(a) and 21.061.

11. Texas Property Code Section 21.049 provides as follows:

Not later than the next working day after the day the [Special Commissioners'] decision is filed, the clerk shall send notice of the decision by certified or registered United States mail, return receipt requested, to the parties in the proceeding, or to their attorneys of record, at their addresses of record.

12. The Legislature enacted Section 21.049 to ensure that landowners received notice of the triggering event to file objections to the findings of the Special Commissioners. See John v. State, 826 S.W.2d 138, 140-41 (Tex. 1992).

13. Section 21.049 is not designed to alter the operation of Sections 21.018 and 21.061, but instead to ensure that landowners know when the period has started in order to object. See id.

14. Given Section 21.049's limited purpose, the Supreme Court has recognized only one circumstance in which Section 21.049 alters the operation of the jurisdiction-limiting provisions in Sections 21.018 and 21.061.

15. When landowners receive no notice of the filing of a Special Commissioners' award, their objections deadline is tolled until the court clerk sends notice. John, 826 S.W.2d at 140.

4 16. "When a statute provides the method by which notice shall be given in a particular instance, the notice provision must be followed with reasonable strictness." John, 826 S.W.2d at 141 n. 4. (emphasis supplied)

17. The notice of the award of the Special Commissioners provided by the Matagorda County District Clerk by e-mail on April 21, 2015, followed Section 21.049 with reasonable strictness. See Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 928-27 (Tex. 2011) (holding that hand-delivered notice satisfies a statute's notice requirement even when the statute's plain language requires notice by certified or registered mail); First Nat'l Bank in Graham v. Sledge, 653 S.W.2d 283, 287 (Tex. 1983) (holding "the method of delivery is immaterial" whenever "notice is actually received"); Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 936 (Tex. 1983) (Provisions [of a notice statute] which are not of the essence of the thing to be done, but which are included for the purpose of promoting the proper, orderly and prompt conduct of business, are not generally regarded as mandatory.").

18. A notice statute calling for delivery by registered or certified mail can be satisfied by an alternative method of service. Washington v, Related Arbor Court, LLC, 357 S.W.3d 676, 681 (Tex. App.—Houston [14"' Dist.] 2011, no pet.) ("[S]tatutory notice requirements may be satisfied by a method of service other than the prescribed statutory method when the recipient acknowledges receipt and therefore has the actual notice the statutory requirement is intended to guarantee."); Goforth v. Bradshaw, 296 S.W.3d 849, 851 (Tex. App.—Texarkana 2009, no pet.) (expert reports sent by regular mail within statutory deadline, which defendants acknowledged receiving, were timely served even though statute required the documents to be served through registered or certified mail); Spiegel v. Strother, 262 S.W.3d 481, 486 (Tex. App.—Beaumont 2008, no pet.) (holding the same when plaintiff sent an expert report by priority mail rather than registered or certified mall and the expert acknowledged timely receipt of the mailing); Wesco Distrib., Inc. v. Westport Grp., Inc., 150 S.W.3d 553, 559 (Tex. App.—Austin 2004, no pet.) (holding that even

21 when a notice requirement "plays a critical role In achieving the purposes of (a) statute," "technical defects" In method of service are "excused by substantial compliance"); Netherland v. Wittner, 862 S.W,2d 786, 787 (Tex. App.—Houston (14" Dist.] 1983, writ ref'd n.r.e.) (holding proper notice was delivered despite registered-mall requirement when appellant admitted actual notice of trial setting by phone call and unregistered mall); Hill v. W.E. §rittaln. (not, 408 S.W.2d 803, 807 (Tex. Civ. App.—Fort Worth 1988, no writ) (holding variance in method of service was immaterial because service actually occurred). 19. E-mail notice of the award of the Special Commissioners to Copano and Ashcroft by the Matagorda County District Clerk on April 21, 2018, compiled with Texas Property Code Section 21.049,

20. Texas Rule of Civil Procedure 21(f)(10) provides as follows: "(10) Electronic Notices From the Court, The clerk may send notices, orders, or other communications about the case to the party electronically. A court seal may be electronic."

Date: a.A......0yowar 10 1 2015

DISTRICT JUDGE PRESIDING

e § 21.018. Appeal From Commissioners' Findings, TX PROPERTY § 21.018

Vernon's Texas Statutes and Codes Annotated Property Code (Refs & Annos) Title 4. Actions and Remedies Chapter 21. Eminent Domain (Refs & Annos) Subchapter B. Procedure (Refs & Annos)

V.T.C.A., Property Code § 21.018

§ 21.018. Appeal From Commissioners' Findings

Currentness

(a) A party to a condemnation proceeding may object to the findings of the special commissioners by filing a written statement of the objections and their grounds with the court that has jurisdiction of the proceeding. The statement must be filed on or before the first Monday following the 20th day after the day the commissioners file their findings with the court.

(b) If a party files an objection to the findings of the special commissioners, the court shall cite the adverse party and try the case in the same manner as other civil causes.

Credits Acts 1983, 68th Leg., p. 3501 ch. 576, § 1, eff. Jan. 1, 1984.

V. T. C. A., Property Code § 21.018, TX PROPERTY § 21.018 Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 21.049. Notice of Decision of Special Commissioners, TX PROPERTY § 21.049

Vernon's Texas Statutes and Codes Annotated Property Code (Refs & Annos) Title 4. Actions and Remedies Chapter 21. Eminent Domain (Refs & Annos) Subchapter C. Damages and Costs (Refs & Annos)

V.T.C.A., Property Code § 21.049

§ 21.049. Notice of Decision of Special Commissioners

The judge of a court hearing a proceeding under this chapter shall inform the clerk of the court as to a decision by the special commissioners on the day the decision is filed or on the next working day after the day the decision is filed. Not later than the next working day after the day the decision is filed, the clerk shall send notice of the decision by certified or registered United States mail, return receipt requested, to the parties in the proceeding, or to their attorneys of record, at their addresses of record.

Credits Added by Acts 1984, 68th Leg., 2nd C.S., ch. 18, § 1(d), eff. Oct. 2, 1984.

V. T. C. A., Property Code § 21.049, TX PROPERTY § 21.049 Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 21.061. Judgment on Commissioners' Findings, TX PROPERTY § 21.061

Vernon's Texas Statutes and Codes Annotated Property Code (Refs & Annos) Title 4. Actions and Remedies Chapter 21. Eminent Domain (Refs & Annos) Subchapter D. Judgment

V.T.C.A., Property Code § 21.061

§ 21.061. Judgment on Commissioners' Findings

If no party in a condemnation proceeding files timely objections to the findings of the special commissioners, the judge of the court that has jurisdiction of the proceeding shall adopt the commissioners' findings as the judgment of the court, record the judgment in the minutes of the court, and issue the process necessary to enforce the judgment.

Credits Acts 1983, 68th Leg., p. 3507, ch. 576, § 1, eff. Jan. 1, 1984.

V. T. C. A., Property Code § 21.061, TX PROPERTY § 21.061 Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 HYPERLINKED MATERIAL NO. _ _ _ __

COPANO NGL SERVICES LLC, § IN THE DISTRICT COURT § Plaintiff. § § § vs. § § OF MATAGORDA COUNTY, TEXAS § JOHN ASHCRAFT, INDIVIDUALLL Y § AND AS TRUSTEE OF THE JOHN § ASHCRAFT FAMILY TRUST 2012, § Mlll;ord1 Couoly • 23'11 Dlltrtct Co..rt § Defendant. § _ _ _ JUDICIAL DISTRICT

ORDER Af POINTING SPECIAL COMMISSIONERS

BE IT REMEMBERED that on this day came to be heard Copano NGL Services LLC,

Plaintiff, who has filed this action with the District Clerk of Matagorda County, Texas, In order

to commence a condemnation proceeding to condemn certain property in the above-styled

proceeding. The Court being of the opinion that Special Commissioners should be appointed for

such proceeding, and it is further appearing that:

Name: L1'ncj.c..1d Thed'f.5Clt'\ Phone: {CJIJ'lf • .J ~.J - 811. g

Jliame: Voe... Crbt\c.,, Phone: {;;?ti} J'/0- ,2.()'1;3

Phone: @1') tflK-tJ717

(the "Soecjal Commjssjoners") are three disinterested real property owners who reside in

H0\::0027719 00001:1771330• I

SCANNED k % Matagorda County. Texan, who are qualified to eerve ae Special Commieeionera herein;

FURTHER, the Court being of the opinion that two altematea ehould be appointed for

euch proceeding, and it la further appearing titat the following are two dlalntereated teal property

ownere who mide in Mategorda County. Texas and who are qualified to eerve ae apecial

oomminionera hereby eppointa the following at alternate Special Commiaaionere. who ehall act

aa Special Commieeionera in the event one or more of the foregoing Special Commiaeionen are

struck or unable to nerve:

Name: mn=(911) i 79" 550/

N=m== _L4.|.._lQ.ta£iu@ Phone: 7 (the "A11emgtg|“); and it ia therefore

ORDERED. ADJUDGED AND DECREED that the laid Special Commieelonere herein

above named be. and the aeme are hereby appointed. Special Commiaaionere (or one or more of

i, the Altematee if need be) to promptly achedule a heering at the earlieat practical time following

twenty (20) daye after this appointment end aaaeaa damagee occasioned by the condemnation of

the property at lteue in the above-etyled proceeding.

stomzo milk dey of be fee k .2ots.

JUDGE rnsstomo t»-WEFL .

MAR ll 2015

MOI-.WI7'7l9I%l:l77l!!0\l Filed 4/21/2015 4 4312 PM Jamie C Bludau

Matagorda County Texas coo Tran it. suifitzzuitanie Wurtz Deputy Houston. Tcxus 77002 Tclcphonci 713-Z26-1200 Fax: 7132233717 \\\\\\'.1oc1

Kcn \lcKuy Di1"cctTc1cphonc: 713-226-1127 Direct l’z\.‘<: 7 3-Z2‘)-Z592 l

1

April 21, 2015 VIA E-FILE

Mary Peck Schubert 23rd Clerk Office District Matagorda County, Texas 111 E. Locust, Room 404 Angleton, Texas 77515

Re: Cause Number 15-H-0082, Copano NGL Sen/ices LLC v. John Ashcraft, individually and as trustee for the John Ashcraft Family Trust, 2012, in the 23rd Judicial District of Matagorda County, Texas.

Dear Ms. Schubert:

Enclosed please find the following documents to be filed in the above-referenced matter:

o Award of Special Commissioners;

0 Order on Accrued Costs and Possession Bonds

accordance with Section 21.049 of the Texas Property Code, please issue In notice of the date of entry of the Award of Special Commissioners, including a file stamped copy of the award, to the parties and their attorneys of record within one (1) day of this filing. Please issue this notice either today or tomorrow as directed by Section 21.049. Please do not wait for Copano NGL Sen/ices LLC to deposit the amount of the Special Commissioners’ Award, or the possession bonds. For your convenience, a list containing the contact information for the parties and their attorneys of record is attached to Exhibit A to the Order on Accrued Costs and Possession Bonds.

please transmit the enclosed Order on Accrued Costs and Additionally, Possession Bonds to Judge Ben Hardin for his signature.

have included an additional copy of these documents. Please file the originals I

in your customary manner, file stamp the copies and return them to the person delivering the documents. Page 2

Thank you foryour time and attention to this matter, and please feel free to contact me if you have any questions or concerns.

Very truly yours,

@%éil»' Kenneth E. McKay cc: Daniel W. Shindler 2232 Ave G Bay City, Texas 77414

John T. McDowell Kacy J. Shindler McDowell Wells, LLP 603 Avondale Street Houston, Texas 77006 Filed 5/19/2015 10:18:23 AM Jamie C. Bludau District Clerk Matagorda County, Texas Stephanie Wurtz, Deputy

NO. 15—H-0082

COPANO NGL SERVICES LLC, IN THE DISTRICT COURT OF Plaintiff,

< E“ MATAGORDA COUNTY, TEXAS JOHN ASHCRAFT, INDIVIDUALLY

AND AS TRUSTEE FOR THE JOHN ASHCRAFT FAMILY TRUST 2012, Defendant. 23rd JUDICIAL DISTRICT OBJECTION TO AWARD OF COMMISSIONERS Copano NGL Services LLC, Plaintiff in this condemnation proceeding, objects to the

award of the special commissioners appointed to assess the damages resulting from the

condemnation described in the award on the following grounds:

The special commissioners failed to apply the correct measure of damages in determining

adequate compensation, which resulted in an award in excess of fair market value of the property

interests taken and the damages suffered by the remainder.

WHEREFORE, Plaintiff respectfully prays that the Court issue a citation for Defendant

John Ashcraft, in his individual capacity and in his capacity as Trustee for the John Ashcraft

Family Trust 2012, and try this case based upon the objections stated herein in the same manner

as other civil causes and that upon trial and hearing, Plaintiff may be awarded all such relief to

which it may show itself justly entitled, either at law or in equity.

HOU:0O27719/00001:1788656v3 Respectfully submitted,

(§~.%£M' Kenneth E. McKay State Bar No. 13690835 A. Antroy Arreola State Bar No. 24006769 Hairy Holmes Thompson State Bar No. 24088527 2800 JPMorgan Chase Tower 600 Travis Street Houston, Texas 77002 (713) 226-1200 (Telephone) (713) 223-3717 (Facsimile)

ATTORNEYS FOR COPANO NGL SERVICES LLC CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been served on the parties listed below via regular mail, certified mail, return receipt requested, e-mail, or facsimile on this 19th day of May, 2015.

John McDowell McDowell Wells, LLP 603 Avondale Street Houston, Texas 77006

Daniel W. Shindler 2232 Ave G Bay City, Texas 77414 @..¢<¢ 5; /U Kenneth E. McKay

_2_

HOU:00277l9/00001:l788656v3 Op

Jamie C. Bludau District Clerk Matagorda County, Texas 1700 7th St., Room 307 Bay City, Texas 77414-5092 (979) 244-7621

May 27, 2015

John Ashcraft PO Box 1371 Van Vleck, TX 77482-1371

Re: Cause Number 15-E-0082, Copano NGL Services LLC v. John Ashcraft:

Dear : John Ashcraft

Enclosed please find the following documents:

• Award of Special Commissioners

a-6N-

(Jami Y C. Bludau, District Clerk

cc: Kenneth McKay 2800 JP Morgan Chase Tower 600 Travis Street Houston, TX 77022 John T. McDowell 603 Avondale Street Houston, TX 77006

Enclosures (1) Filed 6/9/2015 4:49:50 PM Jamie C. Bludau Dist‘r|c tC| e rk Matagorda County, Texas Renda Schuelke, Deputy

NO. 15-H-0082 COPANO NGL SERVICES LLC, IN THE DISTRICT COURT OF Plaintifi’,

< 5" OU>¢0'>OU>¢0'>OU>¢O'><'0'>¢0'><'0'>¢O'><'0'>¢O'><'0'J MATAGORDA COUNTY, TEXAS

JOHN ASHCRAFT, INDIVIDUALLY AND As TRUSTEE FOR THE JOHN ASHCRAFT FAMILY TRUST 2012, Defendants. 23"’ JUDICIAL DISTRICT

DEFENDANTS’ MOTION FOR ENTRY OF JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, John Ashcraft, Individually and as Trustee for the John Ashcraft Family

Trust 2012, Defendants, and files this Motion for Entry of Judgment, respectfully showing unto

the Court the following:

I. UNDERLYING FACTS Plaintiff Copano NGL Services, LLC, filed its Original Petition on or about March 4,

2015. Copano allegedly seeks to construct a twenty-three (23) mile pipeline from near Markham,

Texas, to Old Ocean, Texas, to transport natural gas liquids from the Eagle Ford Shale to

purchasers and processors in Sweeny, Brazoria County, Texas.

On April 21, 2015, Defendants were awarded one million forty three thousand eight

hundred and thirty dollars ($1,043,830.00) by the Special Commissioners. That same day, April

21, 2015, Plaintiff filed the Award of Special Commissioners with the Court pursuant to Section

21.049 of the Texas Property Code.

Plaintiff filed an objection to the Special Commissioners’ Award on May 19, 2015. II. ARGUMENT AND AUTHORITIES Plaintiff’ s Objection is untimely; therefore Defendants are entitled to Judgment on the

Special Commissioners’ Award. “If no party in a condemnation proceeding files timely

objections to the findings of the special commissioners, the judge of the court that has

jurisdiction of the proceeding shall adopt the commissioners’ findings as the judgment of the

court...” Tex. Property Code Sec. 21.061

The deadline to file an objection to a Special Commissioners’ Award is “on or before the

first Monday following the 20th day after the day the commissioners file their findings with the

court.” Tex. Property Code Sec. 21.018. The special commissioner’s award was filed on April

21, 2015. Under section 21.018, the deadline to file an objection to the award was on or before

May 18, 2015. Plaintiff did not file its objection until afier May 18, 2015.

WHEREFORE, PREMISES CONSIDERED, Defendants, John Ashcraft, Individually

and as Trustee for the John Ashcraft Family Trust 2012, respectfully requests that the Court

adopt the commissioners’ findings as the judgment of the Court, and for such other and further

relief, both special and general, at law or in equity, as Defendants may be entitled to receive.

MCDOWELL WELLS, LLP /s/Kacv Shindler John T. McDowell SBN 13570850 jtm@houstontrialattorneys.com Kacy J. Shindler SBN 24088407 ks@houstontrialattorneys.com 603 Avondale Street Houston, Texas 77006 Telephone: (713) 655-9595 Facsimile: (713) 655-7868 PAUL WEBB, P.C. Vincent L. Marable III State Bar No. 12961600 221 N. Houston Wharton, Texas 77488 Telephone: (979) 532-5331 Facsimile: (979) 532-2902

Danny Shindler SBN: 18266200 dWshind1er@sbcglobal.net 2232 Avenue G Bay City, TX 77414 Telephone: 979-245-4666 Facsimile: 979-244-5342

ATTORNEYS FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served on all counsel of

record in compliance with the Texas Rules of Civil Procedure, this 9th day of June, 2015.

Kenneth E. McKay Via Email and Facsimile Locke Lord LLP 2800 JPMorgan Chase Tower, 600 Travis Houston, TX 77002 kmckay@lockelord.com Direct Fax: 713-229-2592

/s/ Kacy Shindler Kacy Shindler Black v. Shor, 443 S.W.3d 154 (2013)

443 S.W.3d 154 Affirmed. Court of Appeals of Texas, Corpus Christi–Edinburg.

Paul BLACK, et al., Appellants, West Headnotes (29) v. Toby SHOR and Seashore Investments [1] Alternative Dispute Resolution Management Trust, Appellees. Arbitration favored; public policy No. 13–11–00413–CV. | April 18, Alternative Dispute Resolution 2013. | Rehearing Overruled May 24, 2013. Scope and Standards of Review 25T Alternative Dispute Resolution Synopsis 25TII Arbitration Background: Investment firm and affiliated business entities 25TII(A) Nature and Form of Proceeding filed motion to confirm arbitration award of $31 million on 25Tk113 Arbitration favored; public policy claims for breach of contract and fraud against joint owner 25T Alternative Dispute Resolution and manager of various companies and properties in which 25TII Arbitration firm and entities had invested. The County Court at Law No. 25TII(H) Review, Conclusiveness, and 3, Nueces County, John Martinez, J., granted motion. Joint Enforcement of Award 25Tk366 Appeal or Other Proceedings for owner appealed. Review 25Tk374 Scope and Standards of Review 25Tk374(1) In general Holdings: The Court of Appeals, Benavides, J., held that: Arbitration is strongly favored and judicial review of an arbitration award is extraordinarily [1] owner successfully preserved other grounds for vacatur narrow. that were not included in the timely motion to vacate; 1 Cases that cite this headnote [2] that firm had transferred its partnership interests to another business entity during pendency of arbitration did not render [2] Alternative Dispute Resolution arbitration panel without authority to issue award to the then Appeal or Other Proceedings for Review existing entities; 25T Alternative Dispute Resolution 25TII Arbitration [3] trial court was under no obligation to prepare findings 25TII(H) Review, Conclusiveness, and of fact or conclusions of law for the sake of confirming an Enforcement of Award arbitration award; 25Tk366 Appeal or Other Proceedings for Review [4] public policy underlying the recognition of a partner's 25Tk367 In general ability to terminate a partnership was not so fundamental or Subjecting arbitration awards to judicial review compelling as to provide grounds to vacate arbitration award; adds expense and delay, thereby diminishing the benefits of arbitration as an efficient, economical [5] any error in awarding firm duplicative tort and contract system for resolving disputes. recovery did not demonstrate manifest disregard of the law or Cases that cite this headnote gross mistake as was necessary to vacate arbitration award; and [3] Alternative Dispute Resolution [6] firm partner was entitled to attorney fee award even Presumptions and Burden of Proof though the firm as a business entity was named party. Alternative Dispute Resolution

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Construction and operation in general 2 Cases that cite this headnote 25T Alternative Dispute Resolution 25TII Arbitration 25TII(G) Award [6] Alternative Dispute Resolution 25Tk337 Presumptions and Burden of Proof Scope and Standards of Review 25Tk338 In general 25T Alternative Dispute Resolution 25T Alternative Dispute Resolution 25TII Arbitration 25TII Arbitration 25TII(H) Review, Conclusiveness, and 25TII(H) Review, Conclusiveness, and Enforcement of Award Enforcement of Award 25Tk366 Appeal or Other Proceedings for 25Tk379 Construction and operation in general Review An arbitration award is given the same effect 25Tk374 Scope and Standards of Review as a judgment of last resort and all reasonable 25Tk374(1) In general presumptions are indulged in favor of the award Review of a trial court's judgment confirming an and none against it. arbitration award focuses on the integrity of the process, not the propriety of the result. 1 Cases that cite this headnote 1 Cases that cite this headnote [4] Alternative Dispute Resolution Scope and Standards of Review [7] Alternative Dispute Resolution 25T Alternative Dispute Resolution Harmless error 25TII Arbitration 25T Alternative Dispute Resolution 25TII(H) Review, Conclusiveness, and 25TII Arbitration Enforcement of Award 25TII(H) Review, Conclusiveness, and 25Tk366 Appeal or Other Proceedings for Enforcement of Award Review 25Tk366 Appeal or Other Proceedings for 25Tk374 Scope and Standards of Review Review 25Tk374(1) In general 25Tk374 Scope and Standards of Review The appellate court reviews a trial court's 25Tk374(8) Harmless error decision to vacate or confirm an arbitration While judicial review to determine whether an award de novo, and the appellate court reviews arbitrator correctly applied the law to the facts is the entire record. generally limited, the parties, by their contract, may agree to allow for judicial review of an 1 Cases that cite this headnote arbitration award for reversible error.

[5] Alternative Dispute Resolution Cases that cite this headnote Scope and Standards of Review 25T Alternative Dispute Resolution [8] Alternative Dispute Resolution 25TII Arbitration Presentation and reservation of grounds of 25TII(H) Review, Conclusiveness, and review Enforcement of Award 25T Alternative Dispute Resolution 25Tk366 Appeal or Other Proceedings for 25TII Arbitration Review 25TII(H) Review, Conclusiveness, and 25Tk374 Scope and Standards of Review Enforcement of Award 25Tk374(1) In general 25Tk366 Appeal or Other Proceedings for Although the appellate court reviews de novo a Review trial court's judgment confirming an arbitration 25Tk371 Presentation and reservation of grounds award, it gives strong deference to the arbitrator of review with respect to issues properly left to the Joint owner and manager of companies and arbitrator's resolution. properties who filed a timely motion to vacate

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$31-million arbitration award within 90-day limitations period following issuance of award 2 Cases that cite this headnote successfully preserved other grounds for vacatur that were not included in the timely motion [11] Alternative Dispute Resolution to vacate; while the Arbitration Act (TAA) Time for proceeding provided a clear 90-day limitations period within 25T Alternative Dispute Resolution which to file the motion to vacate an arbitration 25TII Arbitration award, there was no concomitant requirement for 25TII(H) Review, Conclusiveness, and the motion to vacate to include all grounds that Enforcement of Award would be raised for vacatur prior to trial court's 25Tk360 Impeachment or Vacation ruling on the motion. V.T.C.A., Civil Practice & 25Tk363 Motion to Set Aside or Vacate Remedies Code § 171.088(b). 25Tk363(4) Time for proceeding Filing a motion to vacate an arbitration award 1 Cases that cite this headnote after confirmation of the award constitutes waiver. [9] Alternative Dispute Resolution Cases that cite this headnote Time for proceeding 25T Alternative Dispute Resolution 25TII Arbitration [12] Alternative Dispute Resolution 25TII(H) Review, Conclusiveness, and Nature and Extent of Authority Enforcement of Award 25T Alternative Dispute Resolution 25Tk360 Impeachment or Vacation 25TII Arbitration 25Tk363 Motion to Set Aside or Vacate 25TII(E) Arbitrators 25Tk363(4) Time for proceeding 25Tk228 Nature and Extent of Authority Based on the plain language of the Arbitration 25Tk229 In general Act (TAA), the Legislature intended the 90-day That investment firm had transferred its period in which a party must move to vacate an partnership interests to another business entity award to be a limitations period after which a during pendency of arbitration proceedings did party cannot ask a court to vacate an arbitration not render arbitration panel without authority award. V.T.C.A., Civil Practice & Remedies to issue award to the then existing entities, in Code § 171.088. action for breach of contract and fraud against joint owner and manager of various companies 1 Cases that cite this headnote and properties in which firm and entities had invested; the arbitration agreement was written [10] Alternative Dispute Resolution in manner as to encompass affiliated entities and Presentation and reservation of grounds of both sides to the dispute stipulated that all parties review were properly before the arbitration panel and 25T Alternative Dispute Resolution that all claims would be definitively resolved by 25TII Arbitration the arbitrators based on the stipulation between 25TII(H) Review, Conclusiveness, and the parties. Enforcement of Award 25Tk366 Appeal or Other Proceedings for Cases that cite this headnote Review 25Tk371 Presentation and reservation of grounds [13] Alternative Dispute Resolution of review Agreement or submission as determinative A party seeking to vacate an arbitration award 25T Alternative Dispute Resolution must present any grounds for doing so to the trial 25TII Arbitration court, otherwise, those complaints are waived on 25TII(E) Arbitrators appeal. Rules App.Proc., Rule 33.1. 25Tk228 Nature and Extent of Authority

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25Tk230 Agreement or submission as court or county court without a jury, includes determinative the disposition of a case rendered after an The authority of arbitrators is derived from the evidentiary hearing before the trial court upon arbitration agreement and is limited to a decision conflicting evidence. Vernon's Ann.Texas Rules of the matters submitted therein either expressly Civ.Proc., Rule 296. or by necessary implication. Cases that cite this headnote Cases that cite this headnote

[16] Trial [14] Alternative Dispute Resolution Duty to Make in General Proceedings 388 Trial 25T Alternative Dispute Resolution 388X Trial by Court 25TII Arbitration 388X(B) Findings of Fact and Conclusions of 25TII(H) Review, Conclusiveness, and Law Enforcement of Award 388k388 Duty to Make in General 25Tk353 Confirmation or Acceptance by Court 388k388(1) In general 25Tk357 Proceedings When a judgment is rendered as a matter of law, Trial court was under no obligation to prepare findings and conclusions have no purpose and findings of fact or conclusions of law for the should not be requested or considered on appeal. sake of confirming an arbitration award in proceedings in which no evidence was adduced Cases that cite this headnote by the parties at the hearing on the motion to confirm the arbitration award; trial court did not [17] Trial make determinations of fact based on conflicting Duty to Make in General evidence, as that function had been subsumed 388 Trial in the arbitration process by the arbitrators. 388X Trial by Court Vernon's Ann.Texas Rules Civ.Proc., Rules 296, 388X(B) Findings of Fact and Conclusions of 297. Law 388k388 Duty to Make in General Cases that cite this headnote 388k388(1) In general Even when the trial court receives evidence, [15] Trial findings and conclusions are only appropriate Necessity for request if the trial court is called upon to determine Trial questions of fact upon conflicting evidence. Form and requisites of request Vernon's Ann.Texas Rules Civ.Proc., Rules 296, 297. 388 Trial 388X Trial by Court Cases that cite this headnote 388X(B) Findings of Fact and Conclusions of Law 388k392 Requests for Findings [18] Trial 388k392(1) Necessity for request Necessity for request 388 Trial Trial 388X Trial by Court Form and requisites of request 388X(B) Findings of Fact and Conclusions of Law 388 Trial 388k392 Requests for Findings 388X Trial by Court 388k392(3) Form and requisites of request 388X(B) Findings of Fact and Conclusions of The term “tried,” as used in rule requiring Law 388k392 Requests for Findings trial courts, when properly requested, to prepare 388k392(1) Necessity for request findings of fact in cases “tried” in the district

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388 Trial To support vacatur of an arbitration award, a 388X Trial by Court public policy concern must be well defined 388X(B) Findings of Fact and Conclusions of and dominant and not derived from general Law considerations of supposed public interests. 388k392 Requests for Findings 388k392(3) Form and requisites of request Cases that cite this headnote Rules requiring trial courts, when properly requested, to prepare findings of fact in cases [21] Alternative Dispute Resolution tried in the district court or county court without Mistake or Error a jury do not impose any duty on the trial court to file findings and conclusions when there Alternative Dispute Resolution has been no trial; thus, when there has been Error of judgment or mistake of law no determination of questions of fact based on 25T Alternative Dispute Resolution conflicting evidence, there is no error in the trial 25TII Arbitration court's failure to file findings and conclusions. 25TII(G) Award Vernon's Ann.Texas Rules Civ.Proc., Rules 296, 25Tk327 Mistake or Error 297. 25Tk328 In general 25T Alternative Dispute Resolution Cases that cite this headnote 25TII Arbitration 25TII(G) Award 25Tk327 Mistake or Error [19] Alternative Dispute Resolution 25Tk329 Error of judgment or mistake of law Conformity to public policy Any error in awarding investment firm 25T Alternative Dispute Resolution duplicative tort and contract recovery did not 25TII Arbitration demonstrate manifest disregard of the law or 25TII(G) Award gross mistake as was necessary to vacate 25Tk312 Conformity to public policy arbitration award; the arbitration panel gave Public policy underlying the recognition of a serious consideration to the parties' contentions, partner's ability to terminate a partnership was evidence, and arguments, and nothing in the not so fundamental or compelling as to provide record suggested the panel made its decision grounds to vacate arbitration award, in dispute in bad faith or that it failed to exercise honest between investment firm and joint owner and judgment. manager of various companies and properties in which firm and entities had invested; joint 1 Cases that cite this headnote owner's arguments that his companies and properties were entitled to termination of the [22] Alternative Dispute Resolution partnership were disputed by firm and the issue Error of judgment or mistake of law was submitted to the arbitrators, and, even if the 25T Alternative Dispute Resolution arbitrators were wrong, a mere error, if any, did 25TII Arbitration not necessarily implicate a violation of public 25TII(G) Award policy. 25Tk327 Mistake or Error 25Tk329 Error of judgment or mistake of law Cases that cite this headnote Manifest disregard of the law of the sort necessary to vacate an arbitration award is a very [20] Alternative Dispute Resolution narrow standard of review; it is more than error Conformity to public policy or misunderstanding of the law, but is instead an 25T Alternative Dispute Resolution error that must be obvious and capable of being 25TII Arbitration readily and instantly perceived by the average 25TII(G) Award person qualified to serve as an arbitrator. 25Tk312 Conformity to public policy

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honest judgment and results in a decision that is Cases that cite this headnote arbitrary and capricious.

1 Cases that cite this headnote [23] Alternative Dispute Resolution Error of judgment or mistake of law 25T Alternative Dispute Resolution [26] Alternative Dispute Resolution 25TII Arbitration Consistency and reasonableness; lack of 25TII(G) Award evidence 25Tk327 Mistake or Error 25T Alternative Dispute Resolution 25Tk329 Error of judgment or mistake of law 25TII Arbitration Manifest disregard of the law of the sort 25TII(G) Award necessary to vacate an arbitration award is 25Tk324 Consistency and reasonableness; lack established upon showing that the arbitrator of evidence recognized a clearly governing principle and A judgment rendered after honest consideration ignored it; in other words, the issue is not given to conflicting claims, no matter how whether the arbitrator correctly interpreted the erroneous, is not arbitrary and capricious for law, but whether the arbitrator, knowing the law purposes of challenging arbitration award. and recognizing that the law required a particular result, simply disregarded the law. Cases that cite this headnote

Cases that cite this headnote [27] Alternative Dispute Resolution Mistake or Error [24] Alternative Dispute Resolution Alternative Dispute Resolution Presumptions Error of judgment or mistake of law 25T Alternative Dispute Resolution 25T Alternative Dispute Resolution 25TII Arbitration 25TII Arbitration 25TII(H) Review, Conclusiveness, and 25TII(G) Award Enforcement of Award 25Tk327 Mistake or Error 25Tk366 Appeal or Other Proceedings for 25Tk328 In general Review 25T Alternative Dispute Resolution 25Tk374 Scope and Standards of Review 25TII Arbitration 25Tk374(5) Presumptions 25TII(G) Award It is appellants' burden to demonstrate the 25Tk327 Mistake or Error arbitrator manifestly disregarded the law. 25Tk329 Error of judgment or mistake of law The doctrines of manifest disregard of the law Cases that cite this headnote and gross mistake do not extend to mere mistakes of fact or law; judicial review of an arbitration [25] Alternative Dispute Resolution award is so limited that even a mistake of Mistake or Error fact or law by the arbitrator in the application 25T Alternative Dispute Resolution of substantive law is not a proper ground for 25TII Arbitration vacating an award. 25TII(G) Award 25Tk327 Mistake or Error 1 Cases that cite this headnote 25Tk328 In general “Gross mistake” is conceptually analogous to [28] Alternative Dispute Resolution manifest disregard of the law, for purposes of Mistake or Error challenging an arbitration award; it is a mistake 25T Alternative Dispute Resolution that implies bad faith or a failure to exercise 25TII Arbitration 25TII(G) Award

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25Tk327 Mistake or Error Appellants, Paul Black, PBF Investments, Ltd., BNP 25Tk328 In general Holdings, Ltd., BNP Commercial Properties, Ltd., Pagenergy The trial court should not overturn an arbitration Company, LLC, TSE Equities I LLC, TSE Equities award rendered after honest consideration given Company, Ltd., BNP Management LLC, and 500 Water to claims and defenses presented to it, no matter Street Property LLC, appeal from the judgment of the trial how erroneous. court affirming an arbitration award rendered against them and in favor of Seashore Investments Management Trust Cases that cite this headnote (“Seashore”) through its trustee, Toby Shor (collectively “appellees”). We affirm. 1 [29] Alternative Dispute Resolution Costs 1 By separate opinion issued this same date, the Court 25T Alternative Dispute Resolution vacated in part, and reversed and remanded in part, three 25TII Arbitration post-judgment turnover orders issued on the judgment 25TII(F) Arbitration Proceedings subject to appeal herein. See Black v. Shor., Nos. 13–11– 25Tk269 Costs 00570–CV & 13–11–00715–CV, 2013 Tex.App. LEXIS Individual investment firm partner was entitled –––– (Tex.App.-Corpus Christi Apr. 18, 2013, no pet. to attorney fee award even though the firm as a h.). business entity was named party, in arbitration dispute between firm and companies in which firm had invested; arbitration agreement was I. BACKGROUND written in manner as to encompass affiliated Seashore was created in 2001 for the purpose of investing parties and entities and both sides to the dispute in various oil and gas and commercial property companies stipulated that all parties were properly before owned and managed by Paul Black. Kenton McDonald the arbitration panel, and, by statute, parties was the original trustee for Seashore. Seashore and Black could seek recovery for attorney fees in claims entered into several agreements pertaining to the terms of the for breach of an oral or written contract. investment, including an Agreement Regarding Termination V.T.C.A., Bus. & C. § 27.01. of *159 Joint Ownership, a Restructure Agreement, and an Cases that cite this headnote Indemnity Agreement. Through the trust, Shor, the grantor for Seashore, made substantial investments in the Black group of companies. In 2007, Shor succeeded McDonald as trustee of Seashore and began investigating the financial relationships Attorneys and Law Firms of the companies.

*158 Kevin W. Grillo, Pena & Grillo, PLLC, Corpus Christi, After concluding that appellants had committed misfeasance Alan B. Daughtry, Doyle Raizner LLP, Houston, Ben C. with regard to Seashore's investments, Shor brought suit Broocks, Austin, for Appellants. against appellants for injunctive relief and pre-arbitration discovery in Nueces County Court at Law Number One. Jean C. Frizzell, John S. Black, Billy Berryhill, Reynolds, Shor alleged that the agreements between the parties provided Frizzell, Black, Houston, Ron Barroso, Corpus Christi, for arbitration and that the assets and records of the jointly Richard D. Daly, Houston, Robin C. Gibbs, Jeff Cotner, owned companies had to be preserved to protect the right Houston, for Appellees. to a meaningful arbitration. The trial court appointed a special master to assist in the pre-arbitration process. In Before Justices GARZA, BENAVIDES and PERKES. response to the allegations against them, appellants sought sanctions against Shor, sent Seashore a “termination notice” seeking to dissolve their relationship with it, and participated OPINION in a mediation led by the court-appointed special master. Subsequently, appellants filed a separate lawsuit against Opinion by Justice BENAVIDES. Seashore in County Court at Law Number Three for an alleged breach of the Agreement Regarding Termination.

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the Arbitration hearing, he failed to do so. Mr. Black's Under the terms of the arbitration agreements between the claims of implicit permission from Seashore and/or its parties, these matters were ultimately submitted to arbitration trustee to engage in such self-dealings were contradicted before a panel of three arbitrators in accordance with the by the evidence presented and belied by the written Commercial Arbitration Rules of the American Arbitration agreements between the Parties. The preponderance of the Association. After months of pre-arbitration discovery and credible evidence established that Mr. Black, individually, motions practice, the arbitration hearing was held from June and through PBF and the entities he controlled, violated 2, 2010 to June 15, 2010. In its detailed, ten-page award, fiduciary and other duties owed to Seashore and breached the arbitration panel awarded Seashore “substantial relief” the agreements with Seashore. [Appellants], on the other and denied the Black parties' claims “in their entirety.” hand, failed to establish entitlement to any of the relief they Specifically, the panel concluded that Black “intentionally sought. and over a lengthy period of years, extracted millions of dollars from the jointly-owned entities for his own personal For these reasons, as discussed in greater detail below, we use and benefit.” The panel awarded Seashore approximately award [appellees] substantial relief on their claims asserted $31,000,000 for its claims for breach of contract, breach of herein and deny [appellants'] claims in their entirety. fiduciary duty, and fraud. The award states, in part: The award further details, inter alia, that appellants failed In 2001, Seashore invested in a group of companies run to make payments to appellees under promissory notes by Paul Black and PBF Investments, Limited (“PBF”) and guarantees; breached fiduciary duties to appellees consisting mainly of limited partnerships in the real “by wrongly taking and permitting or effecting excessive estate and oil and gas businesses, with Paul Black distributions from the jointly-owned entities [and] making directly or indirectly holding majority interests in and improper transfers and misusing company funds;” “engaged controlling the general partners, and Seashore holding in fraud and fraudulently induced Seashore to make an initial minority and limited partnership interests.... Paul Black, and subsequent investments in the jointly-owned entities” BNP Management, LC, Pagenergy Company, LLC and through promissory notes and other agreements; and “hid other Paul Black-owned or controlled entities stood in a or attempted to hide transfers to benefit Mr. Black.” The fiduciary relationship to Seashore. arbitration panel also concluded that the “type of misconduct proven in this case is precisely the sort of misbehavior The evidence presented at the Arbitration Hearing clearly Texas law seeks to deter by permitting awards of exemplary and convincingly established that Paul Black treated the damages in appropriate cases” and awarded $5 million in entities jointly-owned with Seashore as his own without punitive damages based on “a persisted pattern of willful, regard for Seashore's rights and interests. In particular, intentional, malicious conduct and grossly negligent conduct the evidence established that Paul Black, intentionally and on the part of Mr. Black toward Seashore over an extended over a lengthy period of years, extracted millions of dollars period of time,” for which the panel concluded that Mr. Black from the jointly-owned entities for his own personal use was “personally liable.” and benefit. Paul Black transferred substantial sums of money to companies wholly owned by himself. He used In County Court at Law Number One, Seashore moved to company credit cards of the jointly-owned entities to pay confirm the arbitration award, whereas appellants moved to personal expenses, and instructed company employees to vacate the award in County Court at Law Number Three. transfer funds from the business as necessary to prevent These cases were ultimately consolidated. The arbitration his personal checking account to be overdrawn. He made award was affirmed by judgment rendered by County Court other improper transfers. He continued to make transfers at Law Number Three on April 6, 2011. This appeal ensued. for his own benefit even after some of his improper transfers and expenditures were discovered and he had Appellants raise six issues on appeal: (1) the judgment and signed a written agreement expressly prohibiting such arbitration award should be vacated and set aside because transfers in the future. Mr. Black continued *160 to the award is made to Seashore, which is not a legal entity, make such transfers even when the entities lacked funds and the time for correcting the award has passed; (2) the to pay their own creditors and obligations. As a fiduciary, judgment should be reversed because after modifying the Mr. Black had the burden to establish the fairness of award and the judgment, the trial court failed to issue findings all such transactions; based on the evidence presented at of fact and conclusions of law to find a clerical error and

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that judge is no longer on the bench, precluding supplemental included in the appellate record. Guajardo v. Conwell, findings now; (3) the award on the “so-called” tort claims, 46 S.W.3d 862, 864 (Tex.2001); In re Guardianship which are related to the partnership interests, should be of Winn, 372 S.W.3d 291, 297 (Tex.App.-Dallas 2012, reversed and rendered because Seashore had transferred its no pet.); Paselk v. Rabun, 293 S.W.3d 600, 612 n. 12 (Tex.App.-Texarkana 2009, pet. denied); WorldPeace v. partnership interest to the Toby Shor 2004 Grantor Retained Comm'n for Lawyer Discipline, 183 S.W.3d 451, 465 n. Annuity Trust (“Toby Shor 2004 GRAT”), which was not a 23 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). party to the arbitration; (4) the judgment and award should After due consideration of the foregoing law and the be set aside and remanded to a different arbitration panel length of time that this appeal has been pending, we allow because the panel failed to give effect to the termination of the filing of Black's post-submission brief, but limit our the partnership, and the allocation of liabilities and offsets consideration of that brief to those issues previously in a termination requires a new arbitration proceeding; (5) raised in the original briefs and the documents properly the judgment and award should be reformed to eliminate presented in the appellate record. Thus, appellees' motion duplicative tort and contract recovery, including amounts that to strike is granted in part, and denied in part. The motion were awarded for appellants' breach of the promissory notes is GRANTED insofar as our consideration of the post- underlying *161 the transactions between appellants and submission brief is circumscribed as described herein appellees, or alternatively, reject any tort recovery outright and DENIED as to all other relief sought. for appellants' failure to pay the promissory notes; and (6) the award of attorney's fees to Shor should be reversed and II. STANDARD OF REVIEW rendered because she was not a prevailing party and there is no other basis for awarding her fees. 2 [1] [2] [3] [4] [5] [6] Arbitration is strongly favored by Texas law, and judicial review of an arbitration award 2 Black filed a post-submission brief in this case on March is extraordinarily narrow. See E. Tex. Salt Water Disposal 19, 2013, almost six weeks after oral argument in this Co., Inc. v. Werline, 307 S.W.3d 267, 271 (Tex.2010) (citing cause. Appellees have filed a motion to strike the post- Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 898 submission brief, or, in the alternative only, grant them (Tex.1995); CVN Group, Inc. v. Delgado, 95 S.W.3d 234, leave to file a responsive brief. Black filed a response to 238 (Tex.2002)); see also In re Guardianship of Cantu the motion to strike his post-submission brief. Appellees de Villarreal, 330 S.W.3d 11, 17 (Tex.App.-Corpus Christi contend that the post-submission brief should be struck 2010, no pet.). “Subjecting arbitration awards to judicial because: Black did not seek leave of Court to file the review adds expense and delay, thereby diminishing the brief; it is a “blatant attempt to re-argue the entire benefits of arbitration as an efficient, economical system for case;” it is untimely; it includes materials outside the resolving disputes.” CVN Group, Inc., 95 S.W.3d at 238. An appellate record; and it raises arguments and cites arbitration award is given the same effect as a judgment of last authorities that were not contained in appellants' original resort and all reasonable presumptions are indulged in favor briefing. We may permit a party to amend or supplement a brief “whenever justice requires.” TEX.R.APP. P. of the award and none against it. Id. Accordingly, we review a 38.7; see also Standard Fruit & Vegetable Co., Inc. trial court's decision to vacate or confirm an arbitration award v. Johnson, 985 S.W.2d 62, 65 (Tex.1998) (appellate de novo, and we review the entire record. Xtria L.L.C. v. Int'l court has discretion whether to allow filing of amended Ins. Alliance Inc., 286 S.W.3d 583, 591 (Tex.App.-Texarkana or supplemental brief in interest of justice). However, 2009, pet. denied); In re Guardianship of Cantu de Villarreal, new or additional issues raised in a reply brief or post- 330 S.W.3d at 17; see Centex/Vestal v. Friendship W. Baptist submission brief are untimely and will not be considered Church, 314 S.W.3d 677, 683 (Tex.App.-Dallas 2010, pet. absent express permission from the appellate court denied); *162 GJR Mgmt. Holdings, L.P. v. Jack Raus, allowing the new or additional issues. See Garrett v. Ltd., 126 S.W.3d 257, 262 (Tex.App.-San Antonio 2003, pet. State, 220 S.W.3d 926, 928–29 (Tex.Crim.App.2007); denied). Although we review de novo a trial court's judgment Collin Cnty. v. Hixon Family P'ship, Ltd., 365 S.W.3d confirming an arbitration award, we give “strong deference 860, 877 (Tex.App.-Dallas 2012, pet. denied); Rogers v. to the arbitrator with respect to issues properly left to the City of Fort Worth, 89 S.W.3d 265, 284 (Tex.App.-Fort Worth 2002, no pet.); Haynes v. McIntosh, 776 S.W.2d arbitrator's resolution.” Xtria L.L.C., 286 S.W.3d at 591; see 784, 788 (Tex.App.-Corpus Christi 1989, writ denied). Centex/Vestal, 314 S.W.3d at 683. Our review focuses on the Moreover, we do not consider attachments to briefs that integrity of the process, not the propriety of the result. Ancor were not part of the trial court record and are not formally Holdings, LLC v. Peterson, Goldman & Villani, Inc., 294

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S.W.3d 818, 826 (Tex.App.-Dallas 2009, no pet.); Women's following statutory grounds for which a trial court “shall” Reg'l Healthcare, P.A. v. FemPartners of N. Tex., Inc., 175 vacate an arbitration award: S.W.3d 365, 367–68 (Tex.App.-Houston [1st Dist.] 2005, no pet.). (1) the award was obtained by corruption, fraud, or other undue means; [7] While judicial review to determine whether an arbitrator (2) the rights of the party were prejudiced by: correctly applied the law to the facts is generally limited under the Texas Arbitration Act, the parties, by their contract, may (A) evident partiality by an arbitrator appointed as a agree to allow for judicial review of an arbitration award for neutral arbitrator; reversible error. See Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 97 (Tex.2011). In this case, the parties' agreements do (B) corruption in an arbitrator; or not contain any provisions allowing for an expanded judicial (C) misconduct or willful misbehavior of an arbitrator; review of the arbitrator's decision, so our review is limited to determining whether the matters the arbitrator decided were (3) the arbitrator: within the scope of the parties' agreements to arbitrate. See id. (A) exceeded his powers;

(B) refused to postpone the hearing after a showing of III. TEXAS ARBITRATION ACT sufficient cause for the postponement; OR FEDERAL ARBITRATION ACT *163 (C) refused to hear evidence material to the In the arbitration clauses that engendered these proceedings, controversy; the parties did not specify whether the Federal Arbitration Act (“FAA”) or the Texas Arbitration Act (“TAA”) applies. (D) conducted the hearing, contrary to sections See 9 U.S.C. §§ 1–16 (West 2009) (FAA); TEX. CIV. 171.044–.047 of the civil practice and remedies code, PRAC. & REM.CODE ANN. §§ 171.001–.098 (West 2011) in a manner that substantially prejudiced the rights of (TAA). Although similar, the two arbitration schemes are not a party; or identical with regard to the review of arbitration awards. See Ewing v. Act Catastrophe–Tex. L.C., 375 S.W.3d 545, 549 (4) there was no agreement to arbitrate, the issue was not (Tex.App.-Houston [14th Dist.] 2012, pet. denied). Compare adversely determined in a proceeding under [statutes to 9 U.S.C. §§ 10, 11, and Hall Street Assocs., L.L.C. v. Mattel, compel arbitrations], and the party did not participate in Inc., 552 U.S. 576, 578, 128 S.Ct. 1396, 170 L.Ed.2d 254 the arbitration hearing without raising the objection. (2008) (holding that grounds stated in the FAA for vacating See TEX. CIV. PRAC. & REM.CODE ANN. § 171.088(a) or modifying an arbitration award are exclusive), with TEX. (West 2011). CIV. PRAC. & REM.CODE ANN. §§ 171.088, 171.091, and E. Tex. Salt Water Disposal Co., Inc., 307 S.W.3d at 282 n. 7 (noting that court of appeals held that the arbitration award could be set aside under common law for fraud, misconduct, IV. PRESERVATION OF ERROR or gross mistake, but “express[ing] no opinion on this issue”), and Callahan & Assocs. v. Orangefield Indep. Sch. Dist., 92 [8] We first address appellees' contention that “none of the S.W.3d 841, 844 (Tex.2002) (“assuming without deciding” issues on appeal were adequately preserved.” According to that a party could attack an arbitration award on the common appellees, appellants failed to timely file a motion to vacate law ground of gross mistake, but concluding that the failure the arbitration award on any of the grounds raised in this to award any damages did not constitute gross mistake). appeal. Appellees contend section 171.088(b) of the Texas Civil Practice and Remedies Code required appellants to file On appeal, because the parties have not taken a position on a motion to vacate within 90 days of receiving the award. See this issue, but have instead variously referred to different id. § 171.088(b) (West 2011). Given that appellants received sections of the TAA, we will apply the TAA to this case. notice of the award on August 18, 2010, appellants timely Under the Texas arbitration scheme, section 171.088(a) of filed such a motion on November 16, 2010; however, that the Texas Civil Practice and Remedies Code provides the motion identified only one ground for vacating the award:

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that the panel exceeded its authority by deciding an issue judgment. We conclude that appellants did not fail to preserve regarding a subordination agreement involving entities who the issues in this appeal by failing to raise them within the were not parties to the arbitration agreements. Appellants ninety-day period for filing a motion to vacate. See Sydow, did not raise other rationales for vacatur of the award until 218 S.W.3d at 171. Accordingly, we proceed to address the after 90 days had passed when, on November 24, 2010, they merits of the appeal. filed their motion for a take-nothing judgment, and on May 5, 2011, when they filed a motion for new trial. Appellees essentially contend that appellants were required to expressly V. PARTIES raise all grounds for vacatur within the 90–day period allotted for filing a motion to vacate. [12] By their first and third issues, appellants attack the arbitration award on grounds that it was rendered in favor of [9] The TAA provides, “[o]n application of a party, the court entities or parties who were not properly before the arbitration shall vacate an award” where certain specified conditions are panel. Appellants' first issue contends that the judgment and met. Id. § 171.088(a)(1). The party must make its application arbitration award should be vacated and set aside because the under subsection (a)(1) “not later than the 90th day after the award is made to Seashore, which is not a legal entity, and date the grounds for the application are known or should the time for correcting the award has passed. The third issue have been known.” Id. § 171.088(b). The plain language asserts that the award on the “so-called” tort claims, which of section 171.088 shows that “the legislature intended the are related to the partnership interests, should be reversed 90–day period ... to be a limitations period after which a and rendered because Seashore had transferred its partnership party cannot ask a court to vacate an arbitration award.” New interest to the Toby Shor 2004 GRAT, which was not a party Med. Horizons II, Ltd. v. Jacobson, 317 S.W.3d 421, 428 to the arbitration. Appellants' arguments under these issues (Tex.App.-Houston [1st Dist.] 2010, no pet.). However, while focus on jurisdiction and standing. the statute provides a clear limitations period within which to file the motion to vacate, the statute does not concomitantly Although appellants do not expressly complain that the require the motion to vacate to include all grounds that will arbitrators “exceeded their powers” in determining that be raised for vacatur. In this regard, we note that the TAA Seashore or the Toby Shor 2004 GRAT had justiciable contains no specific form requirements for the application interests, the underlying basis for their argument that the to vacate. See TEX. CIV. PRAC. & REM.CODE ANN. § trial court had no jurisdiction over these entities is the 171.088; Sydow v. Verner, Liipfert, Bernhard, McPherson & contention that the arbitration panel exceeded its powers. Hand, 218 S.W.3d 162, 172 (Tex.App.-Houston [14th Dist.] Accordingly, we interpret appellants' real complaint to be that 2007, no pet.). There appear to be no policy or efficiency the arbitration panel exceeded its powers in determining that reasons to require a separate, formal application, so long as it had jurisdiction over these parties or that they had standing the party informs the court and the opposing party of the to pursue claims against appellants. desire to have the award vacated. Sydow, 218 S.W.3d at 172. [13] The Texas Supreme Court has stated that “the authority [10] [11] It is abundantly clear that a party seeking to of arbitrators is derived from the arbitration agreement and vacate an arbitration award must present any grounds for is limited to a decision of the matters submitted therein doing so to the trial court, otherwise, those complaints are either expressly or by necessary implication.” Gulf Oil Corp. waived on appeal. See TEX.R.APP. P. 33.1; Ewing, 375 v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 408 (1959). S.W.3d at 549; Kline v. O'Quinn, 874 S.W.2d 776, 790– Therefore, we turn our attention to the arbitration agreements 91 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (op. at issue. on reh'g). It is also clear that filing a motion to vacate after confirmation *164 of the award constitutes waiver. The “Agreement Regarding Termination of Joint See, e.g., GJR Mgmt. Holdings, L.P., 126 S.W.3d at 260; Ownership” (“Agreement”) refers to the parties thereto as Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d including, inter alia, “Seashore Investment Management 256, 269 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). Trust, Kenton E. McDonald, trustee (‘Seashore’),” and states However, appellees cite no authority for the proposition that that “the undersigned” agree to set forth agreements for the the trial court may not consider grounds for vacatur that are provisions for the termination of their joint ownership of raised following a timely filed motion to vacate and before the businesses. The Agreement defines “the undersigned” as,

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inter alia, “Seashore, Toby Shor[,] and entities controlled by not include formal findings of fact and Seashore or Toby Shor [which] are sometimes collectively conclusions of law. referred to as the ‘Seashore Group.’ ” The Agreement includes a dispute resolution provision as follows: The caption, or style, includes “Toby Shor and Seashore Investment Management Trust” who are identified as Dispute Resolution. If a dispute (“Dispute”) arises between respondents, counter-claimants, and third-party claimants. the parties hereto regarding the meaning of this Agreement, or an alleged breach thereof, the parties agree to resolve the The arbitration award defines the parties in relevant part as Dispute through the mediation and arbitration procedures follows: described below in lieu of litigation. The term “Respondents” is used herein .... to refer to Toby Shor, individually, and Seashore Investments Management Arbitration. If the parties are not successful in resolving Trust (“Seashore”). Seashore is a the dispute through [alternative dispute resolution], then grantor trust created in September the parties agree that the Dispute shall be settled by 2000. Initially, Ms. Shor was the arbitration in accordance with the Commercial Arbitration grantor and beneficiary. Her then Rules of the American Arbitration Association, and *165 husband, Kenton McDonald, served as judgment upon the award rendered by the arbitrator(s) trustee. Following Ms. Shor's divorce may be entered in any court having jurisdiction. The costs from Mr. McDonald in 2007, Ms. Shor of the arbitration shall be allocated as determined by the became the trustee also. arbitrator.

In the instant case, appellants' arguments under their first A separate agreement between the parties, the “Restructure issue focus on the fact that the arbitration award issued Agreement,” defines the parties as including “Kenton E. by the arbitration panel expressly awarded damages to McDonald, Trustee of Seashore Investment Management “Seashore Investments Management Trust”; however, the Trust (‘Seashore’).” This Restructure Agreement also final judgment, which expressly incorporated the arbitration provides a dispute resolution procedure including an award verbatim and by attachment, awarded damages to arbitration provision that is substantially identical to the one “Seashore, through Toby Shor as Trustee.” In their third in the Agreement. issue, appellants contend that the arbitration panel lacked jurisdiction to award damages to Seashore on various At arbitration, both sides to this dispute stipulated that all partnership-related claims because Seashore had previously parties were properly before the arbitration panel and all transferred its partnership interests to the Toby Shor 2004 claims would be definitively resolved by the arbitrators. The GRAT. stipulation entered by the parties provides as follows:

The parties to this arbitration hereby The arbitration clauses in the Agreement and Restructure stipulate to the arbitrability of, and Agreement are broad and encompass disputes regarding the submit to arbitration, all claims raised meaning of the agreements or any alleged breaches thereof. in the pleadings to date of all parties The party definitions in these agreements are also quite listed in the caption above. All parties broad. Under a broad arbitration clause, “a dispute between in such caption agree and stipulate the parties to the contract concerning the ownership of a that they and all other such parties claim arising from the contract is just as arbitrable as a are properly before the Arbitration dispute concerning the merits of the claim itself.” Island Panel, and that the Panel has power, on Lake Travis, Ltd. v. Hayman Co. Gen. Contractors, authority, and jurisdiction to issue an 834 S.W.2d 529, 532 (Tex.App.-Austin 1992, writ granted, award binding as to all parties. They judgm't vacated w.r.m.); see Hisaw & Assocs. Gen. Contrs., agree further that a reasoned award is Inc. v. Cornerstone Concrete Sys., 115 S.W.3d 16, 19–20 sufficient, and that such award need (Tex.App.-Fort Worth 2003, pet. denied) (“We hold that the arbitration clause gave the arbitration panel the power to make the determination as to whether Cornerstone, as opposed

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to Chatham, was the properly named party, and that the Dallas 2011, no pet.); Puri v. Mansukhani, 973 S.W.2d 701, trial *166 court correctly confirmed the arbitration panel's 708 (Tex.App.-Houston [14th Dist.] 1998, no pet.) award.”). Accordingly, based on the stipulation between the parties and the foregoing law, we conclude that the arbitration [16] [17] When a judgment is rendered as a matter of law, panel correctly ascertained and determined the parties before findings and conclusions have no purpose and should not it. Moreover, we note that the issue regarding whether be requested or considered on appeal. IKB Indus. (Nigeria) Seashore had transferred interests to the Toby Shor 2004 Ltd., 938 S.W.2d at 443. Therefore, even when the trial GRAT was a matter expressly submitted to the arbitrators. court receives evidence, findings and conclusions are only appropriate if the trial court is called upon to determine We overrule appellants' first and third issues. questions of fact upon conflicting evidence. Ford v. City of Lubbock, 76 S.W.3d 795, 796–98 (Tex.App.-Amarillo 2002, no pet.); Port Arthur Indep. Sch. Dist. v. Port Arthur Teachers Ass'n, 990 S.W.2d 955, 958 (Tex.App.-Beaumont 1999, pet. VI. FINDINGS OF FACT AND denied); see also K2M3, LLC v. Cocoon Data Holding Pty. CONCLUSIONS OF LAW Ltd., No. 13–11–00194–CV, 2012 WL 2469705, at *2–3, [14] In their second issue, appellants contend that the 2012 Tex.App. LEXIS 5203, at *9–10 (Tex.App.-Corpus judgment should be reversed because, after modifying the Christi June 28, 2012, pet. denied) (mem. op.). award in the judgment, the trial court failed to issue findings of fact and conclusions of law to correct a clerical error, and [18] Because Rules 296 and 297 do not impose any duty that judge is no longer on the bench, precluding supplemental on the trial court to file findings and conclusions when findings now. In this regard, appellants contend that the there has been no trial—that is to say, when there has been arbitration panel awarded damages to Seashore, whereas no determination of questions of fact based on conflicting the trial court's judgment, which recited and incorporated evidence—there is no error in the trial court's failure to file the arbitration award, rendered judgment “for Seashore *167 findings and conclusions. See Waterman S.s. Corp. Investments Management Trust through its trustee Toby Shor v. Ruiz, 355 S.W.3d 387, 428 (Tex.App.-Houston [1st Dist.] (‘Seashore’).” 2011, pet. denied); In re Estate of Davis, 216 S.W.3d 537, 542 (Tex.App.-Texarkana 2007, pet. denied); Niehaus v. Cedar [15] Pursuant to Rules 296 and 297 of the Texas Rules of Bridge, Inc., 208 S.W.3d 575, 579 n. 5 (Tex.App.-Austin Civil Procedure, a trial judge must, when properly requested, 2006, no pet.). prepare findings of fact in cases tried in the district court or county court without a jury. See TEX.R. CIV. P. 296 Based upon the foregoing, we conclude that the trial court (providing that “in any case tried in the district or county did not err in failing to make findings and conclusions. court without a jury, any party may request the court to In the instant case, the trial court proceedings regarding state in writing its findings of fact and conclusions of law”); the arbitration award were heard in the same manner and Id. R. 297 (specifying the timetable for filing findings of on the same notice as a motion in a civil case. See TEX. fact and conclusions of law and the procedure for filing CIV. PRAC. & REM.CODE ANN. § 171.093 (West 2011). a notice of past due findings of fact and conclusions of Specifically, no evidence was adduced by the parties at the law). Rule 296 gives “a party a right to findings of fact and hearing on the motion to confirm the arbitration award. The conclusions of law finally adjudicated after a conventional trial court did not make determinations of fact based on trial on the merits before the court.” IKB Indus. (Nigeria) conflicting evidence; rather, that function was subsumed in Ltd. v. Pro–Line Corp., 938 S.W.2d 440, 442 (Tex.1997). the arbitration process by the arbitrators. Accordingly, we In other cases, findings and conclusions are “proper, but a overrule appellants' second issue. See Waterman S.s. Corp., party is not entitled to them.” Id.; see GE Capital Corp. v. 355 S.W.3d at 428; see also Wiggins v. S. Energy Homes ICO, Inc., 230 S.W.3d 702, 710–11 (Tex.App.-Houston [14th of Tex., Inc., No. 05–06–00769–CV, 2007 WL 2875357, Dist.] 2007, pet. denied). The term “tried” for the purposes at *1–2, 2007 Tex.App. LEXIS 7900, at *3–4 (Tex.App.- of rule 296 includes the disposition of a case rendered after Dallas Oct. 4, 2007, no pet.) (mem. op.) (concluding that an evidentiary hearing before the trial court upon conflicting the trial court did not err in failing to issue findings and evidence. See R.H. v. Smith, 339 S.W.3d 756, 761 (Tex.App.- conclusions in proceedings regarding an arbitration award); Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co.,

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164 S.W.3d 438, 442 (Tex.App.-Houston [14th Dist.] 2005, questions about what should be terminated, when it should no pet.) (reviewing trial court's summary judgment affirming happen [,] and how it should be done. Even Mr. Black an arbitration award). admitted there was no deadline to accomplish termination. Moreover, [appellants'] conduct before and after the notice of termination, and their refusal to provide necessary information, excused performance of that agreement by VII. PUBLIC POLICY [appellees] and thwarted any ability to terminate. [19] By their fourth issue, appellants contend that the In addition to the failure to prove breach, [appellants] judgment and award should be set aside and remanded failed to prove that the alleged breaches caused any actual, to a different arbitration panel because the panel failed to recoverable damages or actually precluded [appellants] give effect to the termination of the partnership and the allocation of liabilities and offsets that would result from from hedging. [ 3 ] The causal connection between a partnership termination. In connection with this issue, the alleged breach and the damages claimed was so appellants argue that as “matter of public policy in this tenuous that it established no causal connection at all. state,” appellants were absolutely entitled to terminate their In addition, the damages claimed were impermissibly partnership relationships, and that the judgment and award speculative, requiring, among other things, an assumption failed to give effect to the legal termination of the partnership that [appellants] would have successfully engaged in and the allocation of liability and indemnity that would be physical hedging in the gas market. Such assumptions triggered by such a termination. Appellants contend that were not proven by the evidence presented. Accordingly “[s]imply put, people cannot be forced to remain partners. The [appellants'] claims for breach of the Termination arbitration decision fails to recognize this important public Agreement claims are denied and [appellants] shall take policy decision for Texas.” nothing on those claims.

[20] Public policy is not listed as a ground for vacatur under 3 “Hedging” is a method used to protect one's investment the TAA. For purposes of this opinion, we assume, without or an investor against loss by making balancing or deciding, that a public policy concern is a valid ground to compensating contracts or transactions. See http:// set aside an arbitration award. The Texas Supreme Court has www.oxforddictionaries.com/hedge (last visited March previously held that an arbitration award cannot be set aside 21, 2013). on public policy grounds except in an “extraordinary case” in which the award “clearly violates carefully articulated, [Appellants'] request for an order directing termination and fundamental policy.” CVN Group, Inc., 95 S.W.3d at 239. division of property also is denied. The Bankruptcy Court To support vacatur of an arbitration award, a public policy proceeding and other events and activities have progressed concern must be “well defined and dominant” and not derived to such a stage that a termination order would not be “from general considerations of supposed public interests.” fair, fully-effective[,] or meaningful at this time. Moreover, Id. at 239–40 (quoting United Paperworkers Int'l Union v. most of the relief requested is not warranted under the Misco, Inc., 484 U.S. 29, 44, 108 S.Ct. 364, 98 L.Ed.2d 286 Termination Agreement or otherwise. Accordingly, the (1987)); see Lee v. Daniels & Daniels, 264 S.W.3d 273, 278 request for an order directing termination and division of (Tex.App.-San Antonio 2008, pet. denied). property is denied. Although appellants cite case law for the proposition that Appellants' arguments regarding their alleged right to there are no restrictions on a partner's ability to terminate a terminate the partnerships were submitted to, and heard by, partnership, see Bohatch v. Butler & Binion, 977 S.W.2d 543, the arbitration panel. The panel concluded, inter alia: 545–46 (Tex.1998), appellants provide no authority for the proposition that such ability is a well-defined, fundamental Although [appellants] allege a breach of the Termination public policy. See CVN Group, Inc., 95 S.W.3d at 239. Agreement[,] they *168 failed to prove by a Appellants' arguments that they were entitled to termination preponderance of the credible evidence that any breach of the partnership were disputed by appellees and the issue actually occurred. Rather, the evidence established that was submitted to the arbitrators. Appellants contend that the although there was an agreement by [appellees] with arbitrators were wrong; but a mere error, if any, does not respect to termination, [appellees] raised legitimate

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necessarily implicate a violation of public policy. See id. We given to conflicting claims, no matter how erroneous, is not overrule appellants' fourth issue. arbitrary and capricious. Xtria L.L.C., 286 S.W.3d at 598.

[27] We note that the doctrines of manifest disregard and gross mistake do not extend to mere mistakes of fact or law. VIII. DAMAGES Judicial review of an arbitration award “is so limited that even [21] By their fifth issue, appellants contend that the a mistake of fact or law by the arbitrator in the application of judgment and award should be reformed to eliminate substantive law is not a proper ground for vacating an award.” duplicative tort and contract recovery. Appellants assert Centex/Vestal, 314 S.W.3d at 683; Xtria L.L.C., 286 S.W.3d that the arbitrators' finding of fraud in connection with at 591; Universal Computer Sys., Inc. v. Dealer Solutions, appellants' breach of the promissory notes constitutes a L.L.C., 183 S.W.3d 741, 752 (Tex.App.-Houston [1st Dist.] manifest disregard of the law. Appellants further contend 2005, pet. denied). that the arbitration award violates the one-satisfaction rule by awarding damages for both tort and contract breaches, thereby [28] It is clear from the record from the arbitration hearing awarding a double recovery for the same injury, and that the and the panel's lengthy written decision that the arbitration tort and fraud recoveries are subsumed within the recovery panel gave serious consideration to the parties' contentions, on the notes. evidence, and arguments. Nothing in the record suggests the panel made its decision in bad faith or that it failed to exercise [22] [23] [24] Manifest disregard is a very narrow honest judgment. The trial court should not overturn an standard of review. *169 Xtria L.L.C., 286 S.W.3d at 594; arbitration award rendered after honest consideration given to Home Owners Mgmt. Enters., Inc. v. Dean, 230 S.W.3d claims and defenses presented to it, no matter how erroneous. 766, 768–69 (Tex.App.-Dallas 2007, no pet.). It is more See Xtria L.L.C, 286 S.W.3d at 598; Werline, 209 S.W.3d than error or misunderstanding of the law. Xtria L.L.C., at 898. Accordingly, we hold the trial court did not err in 286 S.W.3d at 594. Instead, the error must be “obvious denying the motion to vacate on this ground. We overrule and capable of being readily and instantly perceived by the appellants' fifth issue. average person qualified to serve as an arbitrator.” Id. Under this standard, the arbitrator recognizes a clearly governing principle and ignores it. Id. In other words, the issue is IX. ATTORNEY'S FEES not whether the arbitrator correctly interpreted the law, but whether the arbitrator, knowing the law and recognizing that [29] In their sixth issue, appellants contend that the award the law required a particular result, simply disregarded the of attorney's fees to Shor should be reversed and rendered law. Id.; Pheng Invs., Inc. v. Rodriquez, 196 S.W.3d 322, because she was not a prevailing party and there is no other 332 (Tex.App.-Fort Worth 2006, no pet.)). It is appellants' basis for awarding her fees. According to appellants, Shor did burden to demonstrate the arbitrator manifestly disregarded not recover individually on any cause of action. the law. Xtria L.L.C., 286 S.W.3d at 594; Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 253 The parties agreed to arbitrate in accordance with the (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Commercial Arbitration Rules of the American Arbitration Association, and those rules allow the recovery of attorneys' [25] [26] Gross mistake is conceptually analogous to fees “if all parties have requested such an award.” AAA manifest disregard. See Int'l Bank of Commerce v. Int'l Energy Comm. R. 43(d). The record from the arbitration hearing Dev. Corp., 981 S.W.2d 38, 48 (Tex.App.-Corpus Christi *170 indicates that the parties had requested attorneys' fees. 1998, pet. denied). A gross mistake is a mistake that implies Moreover, the TAA provides that arbitrators “shall award bad faith or a failure to exercise honest judgment and results attorney's fees as additional sums required to be paid under the in a decision that is arbitrary and capricious. Xtria L.L.C., 286 award only if the fees are provided for: (1) in the agreement S.W.3d at 598; Werline v. E. Tex. Salt Water Disposal Co., to arbitrate; or (2) by law for a recovery in a civil action 209 S.W.3d 888, 898 (Tex.App.-Texarkana 2006), aff'd, 307 in the district court on a cause of action on which any part S.W.3d 267, 268 (Tex.2010); Teleometrics Int'l, Inc. v. Hall, of the award is based.” TEX. CIV. PRAC. & REM.CODE 922 S.W.2d 189, 193 (Tex.App.-Houston [1st Dist.] 1995, ANN. § 171.048(c). By statute, Texas allows recovery for writ denied). A judgment rendered after honest consideration attorney's fees in claims for breach of an oral or written

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contract. See id. § 38.001(8) (West 2008). Texas also allows the recovery of attorney's fees for statutory fraud. See TEX. BUS. & COM.CODE ANN. § 27.01 (West 2009). X. CONCLUSION

In this case, the arbitrator's award of fees is authorized by Having overruled each of appellants' issues, we affirm the law. See Centex/Vestal, 314 S.W.3d at 687. Moreover, to the judgment of the trial court. extent that appellants' arguments under this issue focus on the allegation that Shor was not a proper party to the arbitration or All Citations to receive an award, we have already addressed these issues and need not address them further in connection with this 443 S.W.3d 154 issue. See TEX.R.APP. P. 47.1, 47.4. We overrule issue six.

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5 Cases that cite this headnote 463 S.W.2d 424 Supreme Court of Texas. [2] Courts Mary Frances FEW et vir, Petitioners, Construction and application of particular v. rules The CHARTER OAK FIRE 106 Courts INSURANCE COMPANY, Respondent. 106II Establishment, Organization, and Procedure 106II(F) Rules of Court and Conduct of Business No. B—2276. | Jan. 27, 1971. 106k85 Operation and Effect of Rules 106k85(3) Construction and application of Injured worker, joining her husband pro forma, sued particular rules insurer for workmen's compensation benefits as result of When Rule of Civil Procedure on joinder of injury. The 115th District Court, Wood, County, Looney E. parties established pursuant to limited power Lindsey, J., rendered judgment for plaintiffs, and the insurer vested in Supreme Court by state Constitution to appealed. The Tyler Court of Civil Appeals, Twelfth Supreme establish rules of procedure not inconsistent with Judicial District, Dunagan, C.J., 456 S.W.2d 156, reversed law of state conflicts with legislative enactment, judgment and remanded for retrial. The injured worker the rule must yield. Vernon's Ann.St.Const. art. brought error. The Supreme Court, Pope, J., held that under 5, § 25; Vernon's Ann.Civ.St. arts. 1731a, § 2, statutes, injured worker properly sued without joining her 4621, 4626; Rules of Civil Procedure, rule 39(a). husband for recovery of workmen's compensation benefits, notwithstanding Rule of Civil Procedure which provides that 29 Cases that cite this headnote persons having joint interest shall be made parties, but that where injured worker was being furnished by insurer with [3] Husband and Wife physician and medical services and the worker without notice Parties to the insurer changed doctors, and the insurer informed the 205 Husband and Wife worker that the treatment was unauthorized and asked that she 205VII Community Property return to physician it had provided, the insurer was not liable 205k270 Actions for services rendered by the second doctor. 205k270(5) Parties Under statutes, injured worker properly Judgment of Court of Civil Appeals reversed; trial court sued without joining her husband for judgment modified and affirmed. recovery of workmen's compensation benefits, notwithstanding Rule of Civil Procedure which provides that persons having joint interest shall be made parties. V.T.C.A., Family Code, §§ West Headnotes (5) 4.04, 5.22; Vernon's Ann.Civ.St. arts. 4621, 4626; Rules of Civil Procedure, rule 39. [1] Husband and Wife Damages for injuries to husband or wife 16 Cases that cite this headnote

205 Husband and Wife 205VII Community Property [4] Workers' Compensation 205k260 Damages for injuries to husband or wife Employer's failure to provide or waiver Where injured worker and her husband of right to provide as permitting employee's had been married for many years prior securing services elsewhere to her accident and they were married at 413 Workers' Compensation time of workmen's compensation proceeding, 413IX Amount and Period of Compensation workmen's compensation award was community 413IX(H) Medical or Other Expenses property. 413IX(H)1 In General

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413k973 Enforcement or Preservation of Right to Expenses Mary Frances Few, joining her husband pro forma, sued 413k976 Employer's failure to provide or waiver Charter Oak Fire Insurance Company for total and permanent of right to provide as permitting employee's incapacity suffered in the course of her employment with securing services elsewhere Safeway Grocery in Mineola, Texas. The trial court awarded Where injured worker was being furnished by judgment for the plaintiffs, naming botrh Mary Frances and insurer with physician and medical services and her husband in the judgment. The court of civil appeals, the worker without notice to the insurer changed with a divided court, reversed the judgment for plaintiffs doctors, and the insurer informed the worker and remanded the cause for re-trial, holding that the husband that the treatment was unauthorized and asked was an indispensable party and that he was not joined as that she return to physician it had provided, the a real party. That court held also that the trial court erred insurer was not liable for services rendered by the in awarding plaintiffs damages for certain medical services second doctor. Vernon's Ann.Civ.St. art. 8306, § furnished Mary Frances Few by her private physician when 7. there was no proof that the insurer failed, refused, or neglected to furnish necessary medical services. 456 S.W.2d 156. It 9 Cases that cite this headnote is our opinion that the court incorrectly decided the first of these issues but correctly decided the other. The judgment [5] Pretrial Procedure of the court of civil appeals is reversed and judgment is Effect here rendered modifying the trial court's judgment and, as 307A Pretrial Procedure modified, affirming that judgment. 307AII Depositions and Discovery Plaintiff says that we should reverse the judgment of the 307AII(G) Requests for Admissions 307Ak481 Effect court of civil appeals because (1) the husband was not an (Formerly 127k128 Discovery) indispensable party under the recently enacted Articles 4621 Where insurer pursuant to Rule of Civil and 4626, 1 (2) the defendant waived any defect in parties by Procedure providing for request for admission failing to object to the non-joinder, and (3) her husband was of facts and of genuineness of documents made actually made a real party. The first reason stated above is a admission that it had paid or agreed to pay bill for correct one, so we need not discuss the other two. services rendered by certain doctor, the insurer 1 All Statutory references are to Vernon's Texas Civil was bound by the admission and liable for the Statutes. Articles 4621 and 4626 were carried forward services rendered. Rules of Civil Procedure, rule into the Family Code by the 61st Legislature as Articles 169. 5.22 and 4.04 respectively.

Cases that cite this headnote [1] Mary Frances Few and her husband, Milburn Few, had been married for many years prior to her accident on June 20, 1968, and they are still married. For this reason her workmen's compensation award was their community property. Pickens v. Pickens, 125 Tex. 410, 83 S.W.2d Attorneys and Law Firms 951, 953 (1935). Community ownership may also be called *424 Smith Johnson & McDowell, William McDowell, a joint ownership. Dillard v. Dillard, 341 S.W.2d 668 Sulphur Springs, Woodrow H. Edwards, Mount Vernon, for (Tex.Civ.App.1961, writ ref. n.r.e.); Hitchcock v. Cassel, 275 petitioners. S.W.2d 205 (Tex.Civ.App.1955, writ ref. n.r.e.). Rule 39, Texas Rules of Civil Procedure, as it was worded at the time *425 Ramey, Brelsford, Flock, Devereux & Hutchins, of the trial, 2 provided that persons having a joint interest Donald Carroll and Mike Hatchell, Tyler, for respondent. shall be made parties. It was this rule which prompted the court of civil appeals to hold that the wife's husband was Opinion an indispensable party. The court relied upon our recent POPE, Justice. opinion in Petroleum Anchor Equipment Co., Inc. v. Tyra, 406 S.W.2d 891, 892—893 (Tex.1966), in which we applied Rule 39. In that case we held that persons who hold a joint

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (1971)

interest shall or must be made parties and are indispensable parties. Articles 4621 and 4626 were designed to correct an anomalous situation concerning the rights of a Texas wife. 2 Almost from the beginning of Texas history, the right of a The rule was changed, effective January 1, 1971. wife to own property has been recognized, but it has taken [2] If only Rule 39 were involved in the case before us, more than a century to give the wife managerial powers over our decision would be controlled by our earlier decision in that which she owns. Petroleum Anchor. However, we are now faced with two relevant statutes enacted by the legislature. Article V, Sec. The Constitution of 1836 recognized the community property 25, of the Texas Constitution, Vernon's Ann.St. vests in the system of Mexico and Spain and on January 20, 1840, the Supreme Court the power to establish rules of procedure ‘not Fourth Congress of the Republic determined to follow that inconsistent with the law of the State.’ Legislative authority system in matters of marital property. 2 Gammel Laws of for this power is found in Article 1731a, Sec. 2. Rule 39 Texas 177—178 (1840). The system has proved to be much was established pursuant to this power. As the constitutional fairer in its recognition of the wife's rights of ownership than provision indicates, this is a limited power; and when a rule of that afforded her by the common law. 1 de Funiak, Principles the court conflicts with a legislative enactment, the rule must of Community Property, Sec. 3 (1943). yield. Missouri, K. & T.R. Co. v. Beasley, 106 Tex. 160, 155 The common law had visited upon a wife an intolerable state S.W. 183 (1913), rehearing denied, 106 Tex. 160, 160 S.W. of civil disability both in owning and managing property. 471. As expressed by Vaughn, that system ‘suspended the wife's legal existence during the marriage, or at least consolidated it Articles 4621 and 4626 are the statutes which control this into that of the husband.’ Vaughn, The Policy of Community case. Enacted by the *426 60th Legislature and effective Property and Inter-Spousal Transactions, 19 Bay.L.Rev. 20, January 1, 1968, they provided: 48—49 (1967). At common law, the husband and wife were Art. 4621. * * * During marriage each spouse shall have one, and the husband was that one. Murphy v. Coffey, 33 sole management, control and disposition of that community Tex. 508 (1870). The woman's legal existence, according property which he or she would have owned if a single to Blackstone, was merged into that of her husband, ‘under person, including (but not limited to) his or her personal whose wing, protection, and cover, she performs everything; earnings, the revenues from his or her separate property, the and is therefore called in our law-French, a feme covert, and is recoveries for personal injuries awarded to him or her, and the said to be under the protection and influence of her husband, increase, mutations and revenues of all property subject to his her baron, or lord, and her condition during her marriage is or her sole management, control and disposition; the earnings called her coverture. * * * If the wife be injured in her person of an unemancipated minor are subject to the management, or her property, she can bring no action for redress without control and disposition of the parents or parent having custody her husband's concurrence, and in his name, as well as her of the minor; if community property subject to the sole own. * * *’ Erlich's Blackstone, pp. 83, 84 (1959). management, control and disposition of one spouse is mixed The Republic treated the wife's right to manage her property or combined with community property subject to the sole differently from her right to own that property. The same management, control and disposition of the other spouse, the act of the Fourth Congress which recognized the community mixed or combined community property is subject to the joint property system of ownership, took from the wife any powers management, control and disposition of the spouses unless the to manage what she owned and gave the sole management spouses otherwise provide; any other community property is of the wife's property to the husband. 2 Gammel, Laws of subject to the joint management, control, and disposition of Texas 178 (1840). It has been the law of Texas for more the husband and wife. than a century that, except in limited situations, only the husband could bring suit for community recoveries arising Art. 4626. * * * ‘A spouse may sue and be sued without the out of a wife's loss of earning capacity. Roberts v. Magnolia joinder of the other spouse. When claims or liabilities are joint Petroleum Co., 142 S.W.2d 315 (Tex.Civ.App.1940, *427 and several, the spouses may be joined under the rules relating writ ref., (135 Tex. 289, 143 S.W.2d 79)); Loper v. Western to joinder of parties generally.’ U. Teleg. Co., 70 Tex. 689, 8 S.W. 600 (1888); Gallagher v. Bowie, 66 Tex. 265, 17 S.W. 407 (1886); Ezell v. Dodson,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (1971)

60 Tex. 331 (1883); Murphy v. Coffey, supra; Firence case of joint and several claims, the spouses ‘may be joined Footwear Co. v. Campbell, 406 S.W.2d 516, 411 S.W.2d under the rules relating to joinder of parties generally.’ 636 (Tex.Civ.App.1967, writ ref. n.r.e.); Urban v. Field, 137 [3] Charter Oak argues that Rule 39(a) is the rule of joinder S.W.2d 137 (Tex.Civ.App.1940, no writ). to which Article 4626 referred in its phrase ‘under the rules relating to the joinder of parties generally.’ However, the Seventy years ago Judge Ocie Speer deplored the situation statute, unlike Rule 39(a) is permissive in terms. It is our which recognized the wife's equality of ownership, yet denied opinion that the legislature, in using permissive terms, was that equality with respect to a wife's management of what she recognizing that while the spouses' ownership interest in owned. He wrote: certain property may be joint, the managerial interest in the The foolish fiction that her existence is same property would be several. The legislature surely did merged in that of her husband has given not intend by the use of the phrase ‘may be joined’ in Article way to the more enlightened recognition 4626 to take away the sole managerial authority which it had of her identity as an individual, and her just established in Article 4621. In terms of the facts presently consequent capacity to own property, before us, Mr. Few would be a proper party to the suit because to make contracts, and to sue and be of his ownership interest in the workmen's compensation sued. Yet, as though fearing serious benefit. Howevr, he was not an indispensable party in view consequences of much moment, it has of his wife's sole managerial interest in the benefit. See, 23 not altogether removed her fetters, but Sw.L.J. 55 (1969); 22 Sw.L.J. 132 (1968). We hold that Mary is slowly, yet surely, tending, through Frances Few properly sued without joining her husband for the course of legislative acts and judicial the recovery of workmen's compensation benefits arising out interpretations, toward the enlargement of her own injury. of her rights and powers, which will in time culminate in a proper recognition of all her civil rights. Speer, The Law The court of civil appeals cited and relied upon its earlier of Married Women in Texas, Sec. 25 decision in General Insurance Company of America v. (1901). Casper, 426 S.W.2d 606 (Tex.Civ.App.1968, writ ref. n.r.e.). In a per curiam opinion we held that the court of civil appeals correctly reversed the judgment of the trial court on the Efforts to rectify the wife's inferior legal powers as the grounds that there was no *428 joinder of the plaintiff's manager of her property have been infrequent; and over-broad husband in a suit to recover workmen's compensation corrective legislation changing the definition of community benefits. See, 431 S.W.2d 311. We held, however, that the property has been stricken down on constitutional grounds. case did not present a question of fundamental error as stated See Huie, Sec. 11, Commentary-Community Property Law, by the court of civil appeals, since the error was preserved 13 Vernon's Tex.Stats., p. 39; Northern Texas Traction Co. v. in the trial court. That case arose under Articles 4621 and Hill, 297 S.W. 778 (Tex.Civ.App.1927, writ ref.). 4626 as enacted by the 58th Legislature in 1963. Those earlier statutes were unlike those we have in this case and they did The disabilities of coverture remained as a remnant of the not give the wife sole management over her community. common law until 1967. During the intervening years, the [4] The trial court also rendered judgment against Charter wife in fact was still covert; her husband was still lord and Oak for $808 medical services which plaintiff received from baron. The 60th Legislature, in enacting Articles 4621 and Doctors Thomas and Jones. Charter Oak was furnishing 4626, avoided the constitutional difficulties arising from an plaintiff with a physician and medical services when the attempt to modify legislatively the constitutional definition plaintiff, without notice to the insurer, changed doctors. When of community property. These statutes leave undisturbed the the insurer learned that she was using doctors other than the definition of community property, but more clearly define one whom they had provided, it informed plaintiff that the the managerial rights of each spouse. Article 4621 gave the treatment was unauthorized and asked that she return to the injured spouse powers to manage that community which she physician they had provided. would have owned if a single person, including recoveries for personal injuries. Article 4626 authorized the wife to sue [5] Section 7, Article 8306, Vernon's Tex.Civ.Stats., without joining her husband, but it also provided that in the provides that an employee will not be entitled to recover any amount expended or incurred by him for medical aid ‘unless

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (1971)

pursuant to Rule 169 that it had paid or agreed to pay that bill. the association or subscriber shall have had notice of the Charter Oak is bound by its admission. injury and shall have refused, failed or neglected to furnish (medical services) within a reasonable time. * * *’ There is no evidence that Charter Oak refused, failed, or neglected We reverse the judgment of the court of civil appeals, and to furnish medical services as required by Section 7, Article modify the judgment of the trial court by reducing plaintiffs' 8306. We hold that the insurer is not liable for the services recovery by $745. As thus modified, the trial court's judgment rendered by Dr. Jones, and the trial court should not have is affirmed. allowed recovery for the sum paid or owing to him. Charter Oak was liable, however, for the services rendered by Dr. All Citations Thomas in the sum of $63 because it made an admission 463 S.W.2d 424

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015) 2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

Nonprofit organization that received public funds for services provided to city under 2015 WL 3978138 quid pro quo contract, which services were Supreme Court of Texas. designed enhance economic development, was Greater Houston Partnership, Petitioner, not “supported in whole or in part by public v. funds,” and thus, was not “government body,” Ken Paxton, Texas Attorney General; within meaning of Texas Public Information Act (TPIA); funds received from city constituted and Jim Jenkins, Respondents. compensation for services rendered under No. 13–0745 | Argued March 25, 2015 contract, organization received only small | OPINION DELIVERED: June 26, 2015 portion of its annual revenues from contract, organization would still continue to operate and Synopsis perform same services without public funds. Background: Private nonprofit organization that received Tex. Gov't Code Ann. § 552.003(1)(A). public funds from city pursuant to quid pro quo contract brought action against Attorney General seeking declaratory Cases that cite this headnote judgment that it was not “government body” within meaning of Texas Pubic Information Act. Petitioner whose records [2] Records request organization denied intervened. The District Court, Judicial enforcement in general Travis County, 98th Judicial District, Scott H. Jenkins, 326 Records J., entered judgment for Attorney General and ordered 326II Public Access disclosure of records requested. Organization appealed, and 326II(B) General Statutory Disclosure Austin Court of Appeals, 407 S.W.3d 776, affirmed. Petition Requirements for review was granted. 326k61 Proceedings for Disclosure 326k63 Judicial enforcement in general Whether an entity is a “governmental body” whose records are subject to disclosure under the [Holding:] The Supreme Court, Guzman, J., held that private Texas Public Information Act (TPIA) presents a organization was not “supported in whole or in part by matter of statutory construction that the appellate public funds,” and thus, was not “government body,” within court reviews de novo. Tex. Gov't Code Ann. § meaning of TPIA. 552.003(1)(A).

Cases that cite this headnote Reversed and rendered.

Boyd, J., filed dissenting opinion in which Johnson and [3] Statutes Willett, JJ., joined. Language and intent, will, purpose, or policy Statutes Plain Language; Plain, Ordinary, or West Headnotes (15) Common Meaning 361 Statutes [1] Records 361III Construction Agencies or custodians affected 361III(A) In General 326 Records 361k1078 Language 326II Public Access 361k1080 Language and intent, will, purpose, or 326II(B) General Statutory Disclosure policy Requirements 361 Statutes 326k51 Agencies or custodians affected 361III Construction

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015) 2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

361III(B) Plain Language; Plain, Ordinary, or court recognizes and applies only the meanings Common Meaning that are consistent with the statutory scheme as 361k1091 In general a whole. When interpreting a statute, the court's primary objective is to ascertain and give effect to the 1 Cases that cite this headnote Legislature's intent without unduly restricting or expanding the act's scope, and the court [6] Statutes seeks that intent first and foremost in the plain In general; factors considered language of the text. Statutes 1 Cases that cite this headnote Extrinsic Aids to Construction 361 Statutes 361III Construction [4] Statutes 361III(C) Clarity and Ambiguity; Multiple Undefined terms Meanings Statutes 361k1103 Resolution of Ambiguity; Context Construction of Unclear or Ambiguous Statute or 361 Statutes Language 361III Construction 361k1104 In general; factors considered 361III(D) Particular Elements of Language 361 Statutes 361k1123 Undefined terms 361III Construction 361 Statutes 361III(F) Extrinsic Aids to Construction 361III Construction 361k1171 In general 361III(E) Statute as a Whole; Relation of Parts to When interpreting a statute, the court will only Whole and to One Another resort to rules of construction or extrinsic aids 361k1153 Context when a statute's words are ambiguous. Undefined terms in a statute are typically given their ordinary meaning, but if a different or more Cases that cite this headnote precise definition is apparent from the term's use in the context of the statute, the court will apply [7] Statutes that meaning. Liberal or strict construction 361 Statutes 1 Cases that cite this headnote 361III Construction 361III(A) In General [5] Statutes 361k1069 Liberal or strict construction Undefined terms When interpreting a statute, liberal-construction Statutes objectives do not permit a construction of the act Construing together; harmony untethered from its statutory moorings.

361 Statutes Cases that cite this headnote 361III Construction 361III(D) Particular Elements of Language 361k1123 Undefined terms [8] Statutes 361 Statutes Context 361III Construction 361 Statutes 361III(E) Statute as a Whole; Relation of Parts to 361III Construction Whole and to One Another 361III(E) Statute as a Whole; Relation of Parts to 361k1155 Construing together; harmony Whole and to One Another A court will not give an undefined term a 361k1153 Context meaning that is out of harmony or inconsistent Meanings of statutory terms cannot be with other terms in the statute; therefore, even determined in isolation but must be drawn from if an undefined term has multiple meanings, the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015) 2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

the context in which they are used; the court 361III(E) Statute as a Whole; Relation of Parts to must therefore analyze the reasonableness of Whole and to One Another each definition in light of the statutory context. 361k1159 Associated terms and provisions; noscitur a sociis Cases that cite this headnote The canon of statutory construction known as “noscitur a sociis” —“it is known by its associates”—holds that the meaning of a word or [9] Records phrase, especially one in a list, should be known Agencies or custodians affected by the words immediately surrounding it. 326 Records 326II Public Access Cases that cite this headnote 326II(B) General Statutory Disclosure Requirements 326k51 Agencies or custodians affected [12] Statutes For a private entity to be “sustained” by Language public funds, which would render the entity a 361 Statutes “government body” subject to the Texas Public 361III Construction Information Act (TPIA) suggests the existence 361III(A) In General of a financially dependent relationship between 361k1078 Language the governmental body and a private entity or its 361k1079 In general subdivision redolent of that between a parent and Even a liberal construction of a statute must child or principal and agent; however, financial remain grounded in the statute's language. dependence need not be absolute. Tex. Gov't 1 Cases that cite this headnote Code Ann. § 552.003(1)(A).

Cases that cite this headnote [13] Records Agencies or custodians affected [10] Records 326 Records Agencies or custodians affected 326II Public Access 326II(B) General Statutory Disclosure 326 Records Requirements 326II Public Access 326k51 Agencies or custodians affected 326II(B) General Statutory Disclosure Determining whether a private entity partially Requirements 326k51 Agencies or custodians affected funded with public funds qualifies as a A private entity “supported” by public funds, “governmental body” subject to the Texas Public which would qualify the entity as a “government Information Act (TPIA) will likely require case- body” subject to the Texas Public Information specific analysis and a close examination of the Act (TPIA), would not just receive government facts. Tex. Gov't Code Ann. § 552.003(1)(A). funds; it would require them to operate in whole Cases that cite this headnote or in part. Tex. Gov't Code Ann. § 552.003(1) (A). [14] Statutes Cases that cite this headnote Associated terms and provisions; noscitur a sociis [11] Statutes 361 Statutes Associated terms and provisions; noscitur a 361III Construction sociis 361III(E) Statute as a Whole; Relation of Parts to Whole and to One Another 361 Statutes 361k1159 Associated terms and provisions; 361III Construction noscitur a sociis

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015) 2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

The canon of statutory construction “noscitur a affairs under the Texas Public Information Act. In seeking sociis” that a word or phrase, especially one in a to promote the public's legitimate interest in transparent list, should be known by the words immediately government, the Act imposes considerable disclosure surrounding it, cannot be used to render express obligations on “governmental bod[ies].” Importantly, the statutory language meaningless. statutory definition of “governmental body” extends only to “the part, section, or portion of an organization, corporation, Cases that cite this headnote commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds.” [15] Statutes SeeTEX. GOV'T CODE § 552.003(1)(A)(xii) (emphasis Superfluousness added). This operates to prevent nominally private entities 361 Statutes whose work might otherwise qualify them as de facto 361III Construction public agencies from circumventing the Act's disclosure 361III(E) Statute as a Whole; Relation of Parts to requirements. This case requires us to decide whether the term Whole and to One Another “supported” encompasses private entities contracting at arm's 361k1156 Superfluousness length with the government to provide general and specific When interpreting a statute, the court will services or whether the term properly includes only those generally attempt to avoid treating statutory entities that could not perform similar services without public language as surplusage. funds and, are thus, sustained—in whole or part—by such funds. Cases that cite this headnote When a private entity enters into a contract and receives government funds in exchange for its services, the entity's right to conduct its affairs confidentially may be in On Petition for Review from the Court of Appeals for the tension with the public's right to know how government Third District of Texas. Honorable Scott H. Jenkins, Judge. funds are spent. Transparency, openness, and accountability in the government are all of fundamental importance. Attorneys and Law Firms However, these important policy objectives cannot extinguish the privacy rights properly belonging to private business Bill Aleshire, Aleshire Law PC, Jennifer S. Riggs, Riggs entities in Texas. By liberally authorizing public access to Aleshire & Ray, Austin, TX, Lynne Liberato, Polly B. Fohn, government records while simultaneously shielding private Haynes and Boone LLP, Houston, TX, for Petitioner. business from unwarranted interference, the Legislature Charles Roy, Daniel T. Hodge, First Asst. Attorney General, carefully balanced these conflicting interests. Mindful of David A. Talbot Jr., Consumer Protection, David C. Mattax, the delicate equilibrium between these equally compelling James Edward Davis, Kimberly L. Fuchs, Matthew H. concerns, we conclude that the term “supported,” which helps Frederick, Assistant Solicitor General, Warren Kenneth define the breadth of the Act, unambiguously includes only Paxton Jr., Office of the Attorney General, Rosalind L. Hunt, those entities at least partially sustained by public funding. Office of Attorney General, Administrative Law Divison, Because the statutory language is unambiguous, we need not Austin, TX, Eric Lyf Yollick, Yollick Law Firm, P.C., The consider the accuracy or vitality of the test articulated in Woodlands, TX, for Respondents. Kneeland v. National Collegiate Athletic Ass'n, 850 F.2d 224 (5th Cir. 1988), which the Attorney General's Open Records Opinion Division has traditionally applied to private entities in cases involving open-record requests. JUSTICE GUZMAN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE GREEN, Here, Greater Houston Partnership, a nonprofit corporation JUSTICE LEHRMANN, JUSTICE DEVINE, and JUSTICE providing economic-development services to the City and BROWN joined. other clients pursuant to quid pro quo contracts, contests *1 The question presented here is whether a private entity whether it is a “governmental body” in whole or in part. operating like a chamber of commerce is a “governmental Applying Kneeland, the Attorney General and lower courts body” subject to public disclosure of its private business held that it is. We hold, however, that Greater Houston

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015) 2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

Partnership is not a “governmental body” under the Texas Public Information Act because it is not wholly or partially The instant suit arose from a May 2008 request Houston- sustained by public funds; we therefore reverse the court of area resident Jim Jenkins submitted to GHP in which he appeals' judgment and render judgment for Greater Houston sought “a copy of the check register for [GHP] for all checks Partnership. issued for the year 2007.” Jenkins grounded his request in the Texas Public Information Act (TPIA), claiming that “[p]ublic records show that [GHP] is an organization that spends or that is supported in whole or in part by public funds,” and I. Factual and Procedural Background GHP is, therefore, “subject to the Public Information Act in *2 Greater Houston Partnership (GHP) is a private, the same manner as a governmental body.” SeeTEX. GOV'T nonprofit corporation that promotes regional economic CODE § 552.003(1)(A)(xii) (defining “governmental body” growth and an attractive business climate for a ten- for purposes of the TPIA). county area centered around Houston, Texas. GHP's stated purpose is to enhance economic prosperity, facilitate business GHP objected to Jenkin's request and did not disclose the relocation and expansion, encourage international outreach information. GHP acknowledged it received public funds initiatives, and provide strategic planning to advocate for “the from the City but disagreed it qualified as a “governmental improvement of commercial, industrial, agricultural, civic, body” under the TPIA because the public funds were and cultural affairs” in the Houston region. In furtherance compensation for vendor services provided pursuant to of this objective, GHP provides consulting, event planning, an arm's-length contract with the City. The City's annual and marketing services (including advertising and market payments under the contract amounted to less than 8% of research) to its roughly 2,100 member companies on a GHP's total annual revenue; member contributions, on the contractual basis. GHP also hosts numerous networking other hand, totaled more than 90% of its revenue. GHP further and professional development events, including several noted that of the roughly 2,100 companies that comprise its weekly GHP Council meetings on topics relevant to the membership, only four could be described as governmental regional economy. GHP operates on an annual budget bodies. Refusing to disclose the requested information, GHP of approximately $11.7 million, and these funds emanate referred the matter to the Texas Attorney General as required primarily from membership revenue. In short, GHP functions under the TPIA. See id. §§ 552.301(a), .307. much like thousands of chambers of commerce across the nation that promote municipal and regional economies. In an informal letter ruling, the Attorney General's Open Records Division agreed with Jenkins, and concluded that Consistent with its business model, GHP contracted to GHP was a “governmental body” subject to the TPIA's provide consulting, event planning, and marketing services disclosure requirements specifically with respect to the 2007 to the City of Houston, pursuant to an “Agreement for contract with the City. 1 Tex. Att'y Gen. OR2008–16062; Professional Services.” GHP and the City signed similar see alsoTEX. GOV'T CODE § 552.306. In reaching this agreements annually for several years, including 2007 and conclusion, the Attorney General determined that GHP's 2008, the time periods at issue here. The contracts included operations were “supported” by the City because: (1) GHP a “Scope of Services” exhibit that delineated, under general provided vague and indefinite services to the City aimed at headers, the specific services that GHP would provide to advancing the City's overall economic development; (2) GHP the City. Under these contracts, GHP received quarterly and the City shared a common purpose and objective centered payments in arrears contingent upon the City's approval of around the City's economy; and (3) GHP provided services performance reports detailing the particular services GHP traditionally supplied by the government. Tex. Att'y Gen. provided in that quarter. If GHP failed to deliver the OR2008–16062. contracted-for services to the City's satisfaction, the contracts authorized the City to pay GHP for the portion of services 1 GHP did not claim any exemptions from mandatory satisfactorily rendered. Notably, however, the two contracts disclosure and only challenged that it is a governmental differed in one significant respect: the 2008 contract expressly body subject to the TPIA in the first instance. provided that “[n]othing in this Agreement shall be construed *3 In response to the Attorney General's informal ruling, to imply that [GHP] is subject to the Texas Public Information GHP filed a declaratory-judgment action against the Attorney Act.” General seeking a declaration that: (1) the Attorney General

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lacked jurisdiction over the dispute and (2) even if jurisdiction was proper, GHP was not a “governmental body” under the 3 Derived from a handful of nascent open-records rulings, TPIA. See TEX. GOV'T CODE §§ 552.3215(e), .321, .325(a). the Kneeland test originated in a 1986 case considering Shortly after GHP filed suit, Jenkins filed an additional whether the National Collegiate Athletic Association request seeking a copy of GHP's 2008 “disbursement registers and Southwest Athletic Conference were “supported in and/or check registers,” including the number, date, payee whole or in part by public funds” under the TPIA's name, amount, and purpose. Noting that GHP had already predecessor statute. See Kneeland v. Nat'l Collegiate filed suit regarding the 2007 check-register request, the Athletic Ass'n, 650 F.Supp. 1047 (W.D.Tex.1986), Attorney General closed the second request without a finding rev'd,850 F.2d 224 (5th Cir. 1988). “Finding no and directed the trial court to resolve the dispute. Jenkins dispositive Texas jurisprudence on this issue,” the Fifth Circuit “closely examine[d] the opinions of the Texas intervened in the lawsuit shortly thereafter. See id. § 552.325 Attorney General” and discovered “helpful signs, albeit (authorizing a requestor to intervene in the suit). mixed signals, in the [Attorney General] opinions.” Id. at 228. Despite a rather tepid endorsement, and After a bench trial, the trial court found GHP was a without considering the statutory language, the court “governmental body” supported by public funds and ordered identified and applied “three distinct patterns of analysis disclosure of the 2007 and 2008 check registers. 2 The trial in opinions interpreting [the funding-source element] court determined that: of the Act” to private entities. Id. Those “patterns of analysis” provided the foundation for what became the • GHP received public funds to provide economic three-pronged Kneeland test. development and promotion services for or on behalf of On appeal to this Court, GHP advances three principal the City; reasons why it is not a “governmental body” under the TPIA. First, GHP contends the phrase “supported ... by • GHP and the City shared the common purpose of public funds” unambiguously excludes the City's payments economic development and promotion; and to GHP. Second, even if the language is ambiguous, the • An agency-type relationship was created between GHP Court should reject the Kneeland test because it is unclear and the City of Houston. and not grounded in the statutory language. Third, GHP argues it is not “supported ... by public funds” even under 2 the Kneeland test. The Attorney General disputes all three The sole witness was Tracye McDaniel, GHP's executive vicepresident and chief operating officer. Documentary points. First, it contends that GHP plainly qualifies as a evidence included: six other contracts between GHP “governmental body” under the TPIA; limiting the statute's and other governmental bodies executed after 2008; the reach to entities that exist solely to carry out government contracts between the City and GHP for fiscal years functions would frustrate its purpose of openness, and GHP is 2007, 2008, and 2009; GHP's Articles of Incorporation; “supported” by public funds. Second, the Kneeland test is not Jenkins's requests for the 2007 and 2008 check registers; only the relevant framework in which to evaluate the TPIA's all four quarterly performance reports GHP submitted application to otherwise private entities, the Legislature has to the City in 2007; and performance reports GHP effectively endorsed the Kneeland test. 4 Third, the court submitted to other governmental bodies in 2007 and of appeals properly applied the three Kneeland elements to 2010. GHP, a “governmental body” subject to regulation under the The court of appeals agreed with the trial court and affirmed TPIA. its judgment, albeit over a strongly worded dissent. 407 S.W.3d at 786, 787. Finding the phrase “supported in whole or 4 The Legislature has amended the TPIA several times in part by public funds” ambiguous, the lower court relied on without materially altering the funding-source element an extra-textual analytical construct known as the Kneeland of the “governmental body” definition. See Act of May test to conclude GHP qualified as a governmental body 29, 1995, 74th Leg., R.S., ch. 1035, § 2, 1995 Tex. Gen. under the TPIA. 3 Id. at 782–83. The dissent criticized the Laws 5127, 5128; see also Act of May 20, 1991, 72nd court's reliance on the Kneeland test, finding the statutory Leg., R.S., ch. 306, § 5, 1991 Tex. Gen. Laws 1340, context unambiguously dictated only the narrow construction 1341–42; Act of May 17, 2001, 77th Leg., R.S., ch. 633, of “supported” as applied to a private entity. Id. at 788 (Jones, § 2, 2001 Tex. Gen. Laws 1194, 1194–95; Act of April C.J., dissenting). 23, 1999, 76th Leg., R.S., ch. 62, § 18.24, 1999 Tex. Gen.

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Laws 127, 403; Act of May 24, 2001, 77th Leg., R.S., “supported in whole or in part by public funds.” The proper ch. 1004, § 2, 2001 Tex. Gen. Laws 2186, 2187; Act of scope of this phrase is significant because the consequences of May 20, 2003, 78th Leg., R.S., ch. 1276, § 9.014, 2003 being characterized as a governmental body are considerable. Tex. Gen. Laws 4158, 4218. The most obvious is that under section 552.221 of the Texas *4 We granted GHP's petition for review to determine the Government Code, a “governmental body” must promptly proper scope of the funding source element of the TPIA's produce “public information” on request unless an exemption “governmental body” definition. from disclosure applies and is timely asserted. 7 See id. §§ 552.101–.123, .221; see also Tex. Comptroller of Pub. Accounts v. Att'y Gen. of Tex., 354 S.W.3d 336, 341–48 II. Discussion (Tex.2010) (construing an exemption under the TPIA). The term “public information” broadly includes “information that is collected, assembled, or maintained under a law or A. Background Law ordinance or in connection with the transaction of official business” either: (1) “by a governmental body” or (2) “for The Legislature enacted the Texas Open Records Act in 1973 a governmental body and the governmental body owns the to increase government transparency in the wake of public information or has a right of access to it.” TEX. GOV'T scandals, including a massive stock-fraud imbroglio known CODE § 552.002(a). as the Sharpstown scandal. 5 In 1993, the Open Records Act was recodified without substantive revision as the Texas 7 To claim an exemption, a governmental body must, Public Information Act. 6 Currently codified in Chapter 552 within ten business days after receiving a request, of the Texas Government Code, the TPIA's stated policy submit a written statement to the Attorney General objectives are to provide accountability and transparency explaining why the information should be withheld and in government by establishing mechanisms to foster public request an Attorney General opinion. TEX. GOV'T access to government records. SeeTEX. GOV'T CODE §§ CODE § 552.301(a), (b). If the Attorney General rules 552.001–.353. Importantly, an entity's disclosure obligations that the Act does not exempt the information from under the TPIA hinge on whether it is in fact a “governmental required disclosure, the governmental body must make body.” it available to the requesting party or seek a judicial determination that the information does not have to be disclosed. Id.§§ 552.3215(e), .324, .325(a); see also City 5 See Act of May 19, 1973, 63rd Leg., R.S., ch. of Garland v. Dall. Morning News, 22 S.W.3d 351, 424, § 1–16, 1973 Tex. Gen. Laws 1112, 1112–18 356 (Tex.2000). If the governmental body refuses to (codified at TEX. REV. CIV. STAT. art. 6252–17a); disclose the requested information, the Attorney General see generally Mutscher v. State, 514 S.W.2d 905, may seek to compel disclosure through a mandamus 910–11 (Tex.Crim.App.1974) (summarizing events of proceeding. TEX. GOV'T CODE § 552.321. Sharpstown scandal). 6 Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993 B. Statutory Construction Tex. Gen. Laws 583, 986 (codified at TEX. G OV'T CODE §§ 552.001–.353). *5 [1] [2] [3] [4] [5] [6] GHP argues that as a private The TPIA defines a “governmental body” as one of twelve entity, it is not subject to the TPIA's disclosure requirements different types of entities. See id.§ 552.003(1)(A). Most of because it does not qualify as a “governmental body” under the entities listed in section 552.003(1)(A) are identified quite the statute's plain language. GHP therefore contends that it precisely; for example, a “school district board of trustees” is is entitled to seek the privacy protections typically afforded statutorily defined as a “governmental body.” Id.§ 552.003(1) to nongovernmental entities. Determining whether GHP is a (A)(v). Others are more amorphous, including the section “governmental body” whose records are subject to disclosure at issue here, which subjects “the part, section, or portion under the TPIA presents a matter of statutory construction that of an organization, corporation, commission, committee, we review de novo. City of Garland v. Dall. Morning News, institution, or agency that spends or that is supported in whole 22 S.W.3d 351, 357 (Tex.2000). When interpreting a statute, or in part by public funds” to the TPIA. Id.§ 552.003(1)(A) our primary objective is to ascertain and give effect to the (xii). The crux of our inquiry in this case is the meaning of Legislature's intent without unduly restricting or expanding

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the Act's scope. City of Lorena v. BMTP Holdings, L.P., “governmental body” in its contextual environment—as we 409 S.W.3d 634, 641 (Tex.2013). We seek that intent first are bound to do—reveals that the TPIA applies only to and foremost in the plain meaning of the text. Id.; see also entities acting as the functional equivalent of a governmental Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 body that are “sustained” at least in part, by public funds. S.W.3d 628, 635 (Tex.2010). “Undefined terms in a statute In reaching this conclusion, we remain ever mindful of the are typically given their ordinary meaning, but if a different statute's liberal-construction clause. But liberal-construction or more precise definition is apparent from the term's use objectives do not permit a construction of the Act untethered in the context of the statute, we apply that meaning.” TGS– from its statutory moorings. NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011). “However, we will not give an undefined term Familiar interpretive guides and established canons of a meaning that is out of harmony or inconsistent with other construction inform our reading of section 552.003(1)(A) terms in the statute.” State v. $1,760.00 in U.S. Currency, (xii). In determining the meaning of “supported ... by public 406 S.W.3d 177, 180 (Tex.2013). Therefore, even if an funds,” we begin, as we must, with the statute's plain undefined term has multiple meanings, we recognize and language. Tex. Lottery Comm'n, 325 S.W.3d at 635. Common apply only the meanings that are consistent with the statutory English words frequently have a number of dictionary scheme as a whole. Id. at 180–81. We only resort to rules definitions, some quite abstruse and esoteric, others more of construction or extrinsic aids when a statute's words are comprehensible and commonplace. See, e.g.,$1,760.00 in ambiguous. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d U.S. Currency, 406 S.W.3d at 180–81 (noting that “novelty” 433, 437 (Tex.2009). Finally, in construing the TPIA, we are has multiple dictionary definitions). Not surprisingly, mindful of the legislative mandate that the TPIA be “liberally “supported,” the key term here, is subject to at least construed in favor of granting a request for information.” six disparate definitions in its verb form alone, with TEX. GOV'T CODE § 552.001(b). many of those including more nuanced sub-definitions. SeeWEBSTER'S THIRD NEW INT'L DICTIONARY 2297 As an initial matter, we observe the parties' agreement that (2002). By reading the term in context, however, we can GHP is a “governmental body” only if it, or a “part, section, narrow the universe of possible definitions to the most or portion” of it “is supported in whole or in part by public apposite. See TGS–NOPEC Geophysical Co., 340 S.W.3d at funds.” It is likewise undisputed that GHP receives “public 439. funds.” 8 The parties disagree, however, on the meaning and application of the statutory phrase, “supported in whole or *6 [8] As always, we are cognizant of the “fundamental in part by.” GHP argues that the TPIA cannot reasonably be principle of statutory construction and indeed of language interpreted to apply to privately-controlled corporations that itself that words' meanings cannot be determined in isolation perform services under quid pro quo government contracts. but must be drawn from the context in which they are used.” According to GHP, the Legislature unambiguously intended Id. at 441. We must therefore analyze the reasonableness of “supported in whole or in part by public funds” to identify each definition in light of the statutory context. See Jaster v. entities that were created or exist to carry out government Comet II Const., Inc., 438 S.W.3d 556, 562 (Tex.2014); see functions and whose existence are maintained in whole or also R.R. Comm'n v. Tex. Citizens for a Safe Future & Clean in part with public funds. Conversely, the Attorney General Water, 336 S.W.3d 619, 628 (Tex.2011) ( “We generally declares the statutory language ambiguous because it could avoid construing individual provisions of a statute in isolation reasonably be read to apply to any contract between the from the statute as a whole.”). The statute's first contextual government and a private entity. We agree with GHP. clue emerges from the words immediately surrounding “supported.” To avoid disharmony with the rest of the statute, 8 “supported” must bear reference to “public funds,” so it “Public funds” refers to the “funds of the state or of is clear that non-monetary definitions of “supported” make a governmental subdivision of the state.” TEX. GOV'T little sense in context. SeeWEBSTER'S THIRD NEW INT'L CODE § 552.003(5). DICTIONARY 921 (2002) (defining “funds” as “available [7] “Supported” is an undefined term with multiple and pecuniary resources”). Applying this limitation, we winnow varied dictionary definitions. However, only two of the the field down to two potential meanings for “supported,” definitions are even remotely possible as applied to the TPIA both of which are faithful to the statutory context: and only one of those definitions is reasonable when the statute is considered as a whole. Reading the definition of

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supplies to a single state office. See 407 S.W.3d at 781. Every (1) to pay the costs of: maintain; to supply with the means company must expend funds to stay in business; it would be of maintenance (as lodging, food or clothing) or to earn or impossible to conclude that any business compensated for furnish funds for maintaining; or providing goods or services to a governmental entity pursuant to a quid pro quo contract was not using public funds to (2) to provide a basis for the existence or subsistence pay for necessities. Thus, any entity doing business with the of: serve as the source of material or immaterial supply, government would be a “governmental body.” nourishment, provender, fuel, raw material, or sustenance of. *7 “Quid pro quo” means “[a]n action or thing that is SeeWEBSTER'S THIRD NEW INT'L DICTIONARY 2297 exchanged for another action or thing of more or less equal (2002); accordBLACK'S LAW DICTIONARY 1668 (10th value.” SeeBLACK'S LAW DICTIONARY 1443 (10th ed. ed. 2009) (defining the term “support” to mean “[s]ustenance 2009). As the dissent agrees, the Legislature did not intend or maintenance”). In statutory context, “supported” must thus for the statute to reach entities involved in quid pro quo mean sustenance, maintenance, or both. transactions with the government, and it is undisputed that a fair reading of the statute cannot countenance such a result. Another contextual clue derives from the Act's purpose. The 407 S.W.3d at 789. We reject any reading of “supported” statutory context indicates that all section 552.001(a) entities that would injudiciously apply public transparency laws are either the government or its functional equivalent. First, to private businesses merely because they receive public the statute provides the public with “complete information funds under a contract with the government. Accordingly, about the affairs of government and the official acts of the “maintenance” definition of “supported” is not textually public officials and employees.” TEX. GOV'T CODE § viable. 552.001(a). The stated purpose of permitting access to this information is to allow the public to “retain control over the [9] [10] In contrast, defining “supported” as “sustenance” instruments they have created.” Id. A reasonable definition of ensures that only an entity, or its “part, section or portion,” “supported” must be compatible with this stated purpose. The whose existence is predicated on the continued receipt of statute also specially defines the term “governmental body.” government funds would qualify as a “governmental body.” In defining that term, the Legislature carefully omitted any Among the meanings of “sustain” are “to cause to continue; broad reference to private entities, instead including private to keep up; to carry or withstand; to nourish; to prevent entities insofar as they are “supported ... by public funds.” from sinking or giving way.” SeeWEBSTER'S THIRD Compare id.withFLA. STAT. § 119.011(2). In light of this NEW INT'L DICTIONARY 2304 (2002); see alsoBLACK'S omission, which we presume the Legislature purposefully LAW DICTIONARY 1676 (10th ed. 2009) (defining selected, the scope of the term “governmental body,” as “sustain” to mean “to nourish and encourage”). Applying applied to private entities, must be filtered through the Act's this construction, the universe of private entities constituting purpose and function of allowing access to instrumentalities governmental bodies is obviously more circumscribed of government. Thus, the Act only applies to private entities because only a small segment of private entities could fairly acting as the functional equivalent of the government. See be considered to be sustained by the government. To be TGS–NOPEC Geophysical Co., 340 S.W.3d at 439. “sustained” by public funds suggests the existence of a financially dependent relationship between the governmental Defining “supported” to mean “maintenance” is untenable body and a private entity or its subdivision redolent of because doing so risks sweeping any private entity that that between a parent and child or principal and agent. received any public funds within the definition of a Financial dependency need not be absolute, however. Rather, “governmental body.” See 407 S.W.3d at 781 (citing Tex. the government could be one of several contributing sources. Ass'n of Appraisal Dists., Inc. v. Hart, 382 S.W.3d 587, But sustenance implies that if the government ceased to 591–92 (Tex.App.–Austin 2012, no pet.)). To resurrect the provide financial support, the entity would be unable to meet example provided by the court of appeals, if we equate its financial obligations. Unquestionably, a private entity “supported” with supplying an entity with a means by which would qualify under a financially dependent construction of the entity can pay for necessities, then even a paper vendor “supported” if it could not pursue its mission and objectives with hundreds of clients would qualify as a “governmental without the receipt of public funds, even if that funding body” merely by virtue of getting paid for selling office only partially financed the entity's endeavors. In short, an

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entity “supported” by public funds would not just receive *8 First, the statute expressly identifies as a “governmental government funds; it would require them to operate in whole body” the governing board of a nonprofit water supply or in part. 9 If we construe “supported ... by public funds” or wastewater service corporation that is organized under in this manner, we must conclude GHP is not “supported” Chapter 67 of the Texas Water Code and exempt from by public funds because it receives only a small portion of ad valorem taxation under the Texas Tax Code. See TEX. its revenue from government contracts. And even if these GOV'T CODE § 552.003(1)(A)(ix). A nonprofit corporation government contracts were eliminated, it could continue to of this type is authorized to engage in several traditional operate given the substantial revenue derived from other governmental functions, such as the right to build and non-governmental sources. Moreover, GHP could and would operate water- and waste-treatment facilities and sell water continue to promote the greater Houston economy to advance to political subdivisions, private entities, or individuals. its own interests and those of its more than 2,000 non- SeeTEX. WATER CODE § 67.002. Additionally, depending government members. GHP, in sum, does not require public on the size of the county it serves, a nonprofit water funds and thus, is not sustained by public funds. or waste-water service provider may even establish and enforce “customer water conservation practices” through 9 the assessment of “reasonable penalties as provided in the It is possible, of course, that a portion of a private corporation's tariff.” See id. § 67.011(a)(5), (b). By virtue entity could be sustained by public funds even where the of their special powers and privileges, these nonprofit utility private entity, as a whole, is not. In such instances, if the department or division is sustained by public funds, operators essentially function as quasi-public corporations the division may be subject to the TPIA's disclosure servicing the public. See Garwood Irr. Co. v. Williams, 243 obligations. Here, GHP did not segregate funds, and S.W.2d 453, 456 (Tex.Civ.App.–Galveston 1951, writ ref'd it argued that such segregation would be logistically n.r.e.). impossible. [11] Because only one definition fits the statutory context, The second potentially private “governmental body” we conclude that “supported ... by public funds” must identified in the statute is a nonprofit corporation eligible be appropriately defined to only include those entities to receive federal funding, in the form of block grants, “sustained” by public funds—thereby ensuring that the statute for anti-poverty programs at the state level. TEX. GOV'T encompasses only those private entities dependent on the CODE § 552.003(1)(A)(xi). Under this federal initiative, a public fisc to operate as a going concern. Although not nonprofit may receive funds if it demonstrates “expertise dispositive, our conclusion is reinforced by the fact that this in providing training to individuals and organizations construction of the term “supported” is consistent with the on methods of effectively addressing the needs of low- scope and nature of the eleven other types of entities more income families and communities” through a detailed clearly described as a “governmental body” in the same application process. 10 42 U.S.C. § 9913(c)(2) (2012); see provision. SeeTEX. GOV'T CODE § 552.003(1)(A). The alsoOFFICE OF CMTY. SERVS., U.S. DEP'T OF HEALTH canon of statutory construction known as noscitur a sociis & HUMAN SERVS., COMMUNITY SERVICES BLOCK —“it is known by its associates”—holds that the meaning GRANT STATE AND ELIGIBLE ENTITY TECHNICAL of a word or phrase, especially one in a list, should be ASSISTANT SERVICES 16–17(2015) (listing eligibility known by the words immediately surrounding it. SeeTGS– requirements). 11 A section 552.003(i)(A)(xi) “governmental NOPEC Geophysical Co., 340 S.W.3d at 441. We rely on body” must be “authorized by this state to serve a geographic this principle to avoid ascribing to one word a meaning so area of the state.” See TEX. GOV'T CODE § 552.003(1)(A) broad that it is incommensurate with the statutory context. (xi). This requirement presupposes that the nonprofit has a Accordingly, in evaluating the breadth of “supported in whole close working relationship with the state government. See10 or in part by public funds,” we may consider the scope of TEX. ADMIN. CODE § 5.211 (requiring an authorized the enumerated categories preceding it. SeeFiess v. State nonprofit to submit monthly performance reports to the state Farm Lloyds, 202 S.W.3d 744, 750–51 (Tex.2006). Of the agency monitoring the program). eleven other examples of a “governmental body” listed in the statutory definition of the term, two stand out as arguably the 10 The federal program is codified at 42 U.S.C. §§ most analogous to a private nonprofit like GHP. Thus, we 9901-9926 (2012) and is administered by the U.S. briefly consider each in comparison.

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Department of Health and Human Services Office of remaining informed so that they may retain control Community Service. See42 U.S.C. § 9912 (2012). over the instruments they have created.” Jackson v. State Office of Admin. Hearings, 351 11 Available at http://www.acf.hhs.gov/grants/open/foa/ S.W.3d 290, 293 (Tex.2011) (citations omitted). files/HHS-2015-ACF-OCS-ET-1007_1.pdf. *9 [13] In sum, we define “supported in whole or in part The foregoing examples describe ostensibly private entities by public funds” to include only those private entities or deputized by the government to provide services traditionally their sub-parts sustained, at least in part, by public funds, considered governmental prerogatives or responsibilities. meaning they could not perform the same or similar services Thus, although nominally private, each is in fact acting without the public funds. If GHP (as a private entity that as a quasi-public entity performing a core governmental receives government funds even while not being supported function. There is a significant difference between an entity by them) presents the hard case, entities on the ends of the of this nature and one like GHP, and our construction of spectrum—those that receive no government money, and “supported in whole or in part by public funds” reflects as those that receive only government money—will obviously much by capturing only those entities acting as the functional present much more straightforward questions. Determining equivalent of the government. See Fiess, 202 S.W.3d at 751. whether a partially funded entity qualifies as a “governmental body” will likely require case-specific analysis and a close [12] Our construction of the term “supported” remains examination of the facts. Nonetheless, we recognize as a faithful to the TPIA's liberal-construction clause. See TEX. general proposition that an entity, like GHP, that does not GOV'T CODE § 552.001(b) (“This chapter shall be liberally depend on any particular revenue source to survive—public construed in favor of granting a request for information.”). or private—is not sustained even in part by government funds. We have consistently recognized this clause expresses an important statement of legislative purpose, and we continue to adhere to it today. See, e.g.,City of Garland, 22 S.W.3d at 364 (“Unlike the [Freedom of Information Act], our C. Other Jurisdictions Act contains a strong statement of public policy favoring While our construction of the TPIA is supported by a public access to governmental information and a statutory plain-meaning reading of the statute, an examination of mandate to construe the Act to implement that policy and to similar open-records statutes from other jurisdictions is also construe it in favor of granting a request for information.”). instructive. In states where open-records acts apply to entities Still, even a liberal construction must remain grounded “supported in whole or in part by public funds,” our sister in the statute's language and cannot overwhelm contextual courts have unanimously construed the phrase to exclude, indicators limiting public intrusion into the private affairs of as a general matter, private entities receiving public funds nongovernmental entities. 12 pursuant to quid pro quo agreements without regard to whether such an agreement is the entity's only funding 12 There is little to support the view that open-records laws source. See, e.g.,Indianapolis Convention & Visitors Ass'n, were envisioned as tools to pry open the sensitive records Inc. v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 214 of private entities or to function as a private discovery (Ind.1991) (“In situations involving a quid pro quo, that is, tool. See N.L.R.B. v. Robbins Tire & Rubber Co., 437 measured goods or services given in exchange for payment U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) based on identifiable quantities of goods or services, a private (describing the Freedom of Information Act). Instead, we entity would not be transformed into a public entity because have recognized: it would not be maintained and supported by public funds.”); The Texas Legislature promulgated the TPIA Weston v. Carolina Research & Dev. Found., 303 S.C. with the express purpose of providing the public “complete information about the affairs of 398, 401 S.E.2d 161, 165 (1991) (“[T]his decision does not government and the official acts of public officials mean that the [open-records act] would apply to business and employees.” The Act is aimed at preserving enterprises that receive payment from public bodies in return a fundamental tenet of representative democracy: for supplying specific goods or services on an arms length “that the government is the servant and not the basis.”); Adams Cnty. Record v. Greater N.D. Ass'n, 529 master of the people.” At its core, the TPIA reflects N.W.2d 830, 836 (N.D.1995) (“When there is a bargained- the public policy that the people of Texas “insist on for exchange of value, a quid pro quo, the entity is not supported by public funds.”). Additionally, even in those

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states whose open-records acts fail to define “governmental controlled corporation” and subject to FOIA disclosure body” or an equivalent term, our sister courts still narrowly requirements only if the private entity is also subjected to construe the statute to include only private entities that have “extensive, detailed, and virtually day-to-day supervision” by a relationship so intertwined with the government that they the government. Forsham v. Harris, 445 U.S. 169, 180, 100 are the “functional equivalent of a governmental agency.” S.Ct. 977, 63 L.Ed.2d 293 (1980). The federal supervision Memphis Publ'g Co. v. Cherokee Children & Family Servs., must be “substantial ... and not just the exercise of regulatory Inc., 87 S.W.3d 67, 78–79 (Tenn.2002); see also State ex rel. authority necessary to assure compliance with the goals of Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 854 the federal grant.” Id. at 180 n.11, 100 S.Ct. 977. Thus, N.E.2d 193, 198–99 (2006). narrowly defining “supported in whole or in part by public funds” under Texas law is consistent with the approach of Recognizing the right of private businesses to conduct their other jurisdictions featuring similar acts and the United States affairs autonomously, at least one court has adopted a Supreme Court's interpretation of the federal act on which the presumption that a private entity is not subject to an open- TPIA is based. records request absent clear and convincing evidence that the private entity is the functional equivalent of a governmental body. See, e.g.,State ex rel Oriana House, Inc., 854 N.E.2d D. Response to the Dissent at 200. In Florida, the only state whose statute expressly includes private entities, the Florida Supreme Court narrowly [14] We briefly address some of the contentions in the interpreted its open-records act to exclude private entities dissenting opinion. Regarding statutory construction, there is merely providing professional services to a governmental little disagreement about the guiding principles and relevant body. See News & Sun–Sentinel Co. v. Schwab, Twitty & canons involved here, and we agree, of course, that the canon Hanser Architectural Group, Inc., 596 So.2d 1029, 1031 of noscitur a sociis“cannot be used to render express statutory (Fla.1992) (construing FLA. STAT. § 119.011(2)). In fact, of language meaningless.” Op. at –––– (Boyd, J., dissenting). those states with similar statutes, we have not encountered We disagree as to the proper implementation of the canon, one that has construed an open-records act to include a private however. The dissent asserts that the first eleven definitions entity providing specific and measurable vendor services to a of “governmental body” in the TPIA should be cabined off governmental body, even if that entity receives public funds. from the twelfth definition of that term because the twelfth We find it difficult to ignore this interpretative uniformity, definition “uses specific language, inherently different than especially considering the gravitas of the interests at stake. the language of the other definitions.” Id. at ––––. The dissent, thus, argues that the nature of the first eleven definitions *10 Our plain-meaning construction also comports with cannot inform the twelfth. We disagree. All twelve are federal precedent interpreting the federal analogue—the definitions of governmental bodies, and given that the twelfth Freedom of Information Act (FOIA). See Tex. Comptroller definition is the most open-ended, blinders would be required of Pub. Accounts, 354 S.W.3d at 342 (noting that because to construe it in isolation from its statutory predecessors. the Legislature modeled the TPIA on the FOIA, federal Separating the definitions in this way would not only be precedent is persuasive in construing the Act). Under the artificial, it would also deprive us of a key source of insight FOIA, “agency,” the federal equivalent of “governmental into the parameters of the more expansive twelfth definition. body,” is defined to include: More significant, however, is the dissent's suggestion that any executive department, military the statute is ambiguous. The dissent, building on this department, Government corporation, imprudent reading, would look to Attorney General decisions Government controlled corporation, or and the Kneeland test for “further guidance.” Id. at ––––. other establishment in the executive In canvassing the landscape of informal Attorney General branch of the Government (including rulings and divining instruction therefrom, the dissent the Executive Office of the President), resurrects Kneeland 's questionable methodology, which did or any independent regulatory agency. the same. And as that court itself noted, even if “[o]ne 5 U.S.C. § 552(f)(1) (2012). In interpreting this broad may have no quarrel with the formulae,”“the direction language, the United States Supreme Court held that a private given is a mite uncertain.” Kneeland, 850 F.2d at 228. The entity receiving federal funding is considered a “government dissent finds Kneeland “persuasive” but we do not reach

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that analysis because of our determination that the statutory visit target companies and pitch them on the City's business language unambiguously excludes GHP from qualifying as advantages. These services are specific and measurable and a “governmental body.” Nonetheless, we think it worth are the sort of quid pro quo exchanges typical of a vendor brief pause to note Kneeland 's questionable foundation, services contract in that industry. as it—along with the raft of informal Attorney General rulings that bookend the decision—constitute the “forty Thus, we do not believe that the monetary payments due to years of legal interpretations” that we supposedly ignore GHP under the 2007 and 2008 agreements are “general or in today's opinion. 13 Slip Op. at 3 (Boyd, J., dissenting). unrestricted payment[s] provided to subsidize or underwrite But many of these rulings were informal and, as such the entity's activities” rather than “specific measurable lack any precedential value. Put simply, the weight of this services.” Id. at ––––. Even the dissent admits that some—but legal authority is considerably less august than the dissent's not all—of GHP's activities qualify as “specific measurable formulation implies. services,” so the disagreement here is more a matter of degree than anything else. 13 The Kneeland test gained prominence by happenstance The dissent's revised test would also require that “the funds rather than design. It derived from a single federal district be intended to promote a purpose, interest, or mission that court opinion based on five conclusory Attorney General opinions written without any attempt to construe the the governmental and private entities share and would both statutory language. After Kneeland issued, the Attorney pursue even in the absence of their contractual relationship.” General adopted the test without further analysis. Id. at ––––. The dissent posits that a law firm may share Thereafter, the lower courts used the Kneeland test a broad goal with a client, but the firm's interest remains out of deference to the Attorney General, also without “transaction specific” in a way that GHP's engagement is scrutinizing the test in light of the statutory text and not. Id. at ––––. At the risk of quibbling, we dispute that legislative intent embodied therein. We decline to defer this metaphorical dividing line is nearly that clear or marked. to a test created without consideration of the statutory Many law firms are hired not merely for a specific litigation language. matter but rather to provide more enduring and wide-ranging *11 While the dissent purports to rehabilitate Kneeland, counsel. And more importantly, while the dissent takes its revised test is at best a partial improvement. The revised for granted that GHP and the City's interests are perfectly test makes it virtually impossible for an entity that provides aligned (and presumably always will be), that assumption intangible deliverables, such as consulting, advertising, or is debatable. For instance, although the vast majority of legal services, to satisfy the “specific and measurable cities presumably welcome financial investment, growth services” prong of the test. The dissent portrays GHP as can prove politically divisive—just witness the debates sharing only broad, amorphous goals with the City. Yet, over gentrification that grip many major cities experiencing the “broad” contract language referenced by the dissent explosive economic expansion. Regardless, the point is that actually refers to GHP's more general overarching objectives GHP is hardly the auxiliary and mirror of the City that the (essentially, these statements of objectives function as dissent portrays it to be, and the proposed revision of the titles under which specific obligations of the contract are Kneeland test will not significantly clarify this confused area delineated). Each broad objective is followed by a list of the law. of specific services GHP promised to provide to achieve those objectives. For example, GHP was hired “to identify [15] The dissent also contends that “the Court writes the new business opportunities, secure economic incentives and words ‘in part’ completely out of the statutory definition.” increase outreach and recruitment activities to the region's Id. at ––––. Nothing so drastic is occurring here. The targeted key industries to strengthen the City of Houston statute's “in part” language may envision a multi-division as a competitive place to do business.” In furtherance of entity that does business with the government, but not that objective, GHP is contractually obligated to develop uniformly and not across all units. For instance, one can business relationships with the top twenty-five companies not conceptualize a subdivision of a large corporation wholly currently headquartered in the City; create and implement funded by government contracts; nevertheless, because the a business-retention program to provide quick responses to subdivision is only a small part of the large organization, the companies in the City; and arrange and host ten recruiting government business forms a relatively small portion of the trips, or “Signature Events,” for Houston-based executives to corporation's total revenue. In this scenario, the organization

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may be said to be supported “in part” by public funds. Applying the TPIA's plain and unambiguous language, we Moreover, there may be more overlap between “in part” hold that GHP is not “supported in whole or in part by and the neighboring statutory language than the dissent public funds” and thus is not a “governmental body” under allows. While we generally attempt to avoid treating statutory the TPIA. Because the relevant provisions of the TPIA language as surplusage, “there are times when redundancies are unambiguous, we do not apply the analysis outlined in are precisely what the Legislature intended.” In re Estate of Kneeland v. National Collegiate Athletic Ass'n, 850 F.2d 224 Nash, 220 S.W.3d 914, 917–18 (Tex.2007); see also In re (5th Cir. 1988), nor any other extra-textual construct. We City of Georgetown, 53 S.W.3d 328, 336 (Tex.2001) (noting therefore reverse the court of appeals' judgment and render that statutory redundancies may mean that “the Legislature judgment for Greater Houston Partnership. repeated itself out of an abundance of caution, for emphasis, or both”). Regardless of whether such drafting caution is at work here, the point remains that there are a host of possible JUSTICE BOYD filed a dissenting opinion, in which explanations addressing the dissent's concerns. JUSTICE JOHNSON and JUSTICE WILLETT joined.

JUSTICE BOYD, joined by JUSTICE JOHNSON and III. Conclusion JUSTICE WILLETT, dissenting. *12 Amidst all the argument attempting to classify GHP as a Forty-two years ago, the Texas Legislature passed what has governmental body, it is worth recalling precisely what GHP become “widely regarded as the strongest and most successful is not: GHP is not a government agency, nor is it a quasi- open government law in the country.” 1 Just three years public agency specifically listed under the Texas Government later, in this Court's first opinion addressing the new Texas Code as a “governmental body.” GHP does not rely on its Open Records Act, 2 we confirmed that it is the Legislature's government contracts to sustain itself as a going concern; policymaking role to balance “the public's right of access” as all parties acknowledge, the government funds it receives against “potential abuses of the right,” and the Court's role is constitute a relatively minuscule portion of GHP's annual merely “to enforce the public's right of access given by the budget. The only way GHP can qualify as a “governmental Act.” Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 body,” then, is if it can be said to be “supported in whole or S.W.2d 668, 675 (Tex.1976). Balancing these interests, the in part by public funds.” Legislature decided that the Act should apply to “the part, section, or portion” of any “organization [or] corporation ... GHP, like countless chambers of commerce nationwide, that is supported in whole or in part by public funds.” TEX. provides marketing, consulting, and event-planning services GOV'T CODE § 552.003(1)(A)(xii). That may be bad policy, to the City and other clients pursuant to quid pro quo or it may be good policy, but it is the policy of Texas, and this contracts. Like the lobbying shops and law firms that also Court's only task is to enforce it. populate the State payroll, GHP shares many common objectives with the City, but without more, such shared 1 City of Dall. v. Abbott, 304 S.W.3d 380, 395 interests can hardly transform a service provider into n.5 (Tex.2010) (Wainwright, J., dissenting); see a government appendage. A private entity engaged in alsoCHARLES L. BABCOCK ET AL., OPEN economically delicate work should not be subjected to GOVERNMENT GUIDE: OPEN RECORDS AND invasive disclosure requirements merely because it counts MEETINGS LAWS IN TEXAS 1–2 (6th ed. 2011) the government as one client among many. Transparency (describing Texas Public Information Act as “among the is a real concern, to be sure, and the TPIA's liberal- strongest in the nation” and “among the most liberal construction mandate reflects the depth of this interest. But in the United States”), available at http://www.rcfp.org/ liberal construction is not tantamount to boundless reach. Yet, rcfp/orders/docs/ogg/TX.pdf. even if not directly subject to disclosure obligations under the 2 Act of May 19, 1973, 63d Leg., R.S., ch. 424, 1973 Tex. TPIA, GHP's transactions with the government are hardly in Gen. Laws 1112–18 (codified at TEX. REV. CIV. STAT. a black box; the City—which is indisputably a “governmental art. 6252–17a). In 1993, the Legislature codified the Act body”—must disclose information regarding its contractors, in the Texas Government Code and renamed it the Texas including GHP. Public Information Act. Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 1, secs. 552.001–.353, 1993 Tex. Gen.

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Laws 583, 594–607 (codified at TEX. G OV'T CODE §§ at issue, and the evidence here regarding the Partnership and 552.001–.353). its support. *13 To enforce the Legislature's policy choice in this case, we must decide what it means for a “part, section, or portion” A. Requirements of the Act of a corporation to be “supported in whole or in part by public funds.” See id. The Court adopts the narrowest construction The Public Information Act requires the “officer for public possible, identifying two requirements that appear nowhere in information of a governmental body” 3 to “promptly produce the statute's language. The Court's all-or-nothing construction public information” upon request. TEX. GOV'T CODE § is irreconcilable with the provision's express inclusion of a 552.221(a). “Public information” means information “that is “part, section, or portion” of an entity that is “supported in written, produced, collected, assembled, or maintained under whole or in part by public funds.” See id.(emphasis added). a law or ordinance or in connection with the transaction of Striving to be faithful to the Act's plain language, mindful official business,” either (1) “by a governmental body;” (2) of its express mandate that courts construe it liberally in “for a governmental body” if the governmental body favor of access to information, and respectful of the many owns the information, has a right of access to it, or prior decisions of the Texas Attorneys General charged with “spends or contributes public money for the purpose of interpreting and enforcing the Act, I would hold that a “part, writing, producing, collecting, assembling, or maintaining the section, or portion” of a private organization or corporation information;” or (3) “by an individual officer or employee of is “supported in whole or in part by public funds” and thus a a governmental body in the officer's or employee's official “governmental body” if it (1) receives public funds, (2) not as capacity and the information pertains to official business compensation or consideration paid in exchange for “specific of the governmental body.” Id.§ 552.002(a). “Information goods” or “specific measurable services,” but as a general or is in connection with the transaction of official business unrestricted payment provided to subsidize or underwrite the if the information is created by, transmitted to, received entity's activities, and (3) those activities promote a purpose, by, or maintained by an officer or employee of the interest, or mission that the governmental and private entities governmental body in the officer's or employee's official share and would each pursue even in the absence of their capacity, or a person or entity performing official business or contractual relationship. Because the evidence establishes all a governmental function on behalf of a governmental body, three of these elements in this case, I would hold on this record and pertains to official business of the governmental body.” that the Greater Houston Partnership is a governmental body. Id.§ 552.002(a-1). Because the Court holds otherwise, I respectfully dissent.

3 An “officer for public information” is the governmental body's chief administrative officer (or, in the case of a I. county, an elected county officer), and the head of each department within the governmental body is the officer's agent for purposes of complying with the Act. TEX. Background GOV'T CODE §§ 552.201–.202. This case presents a single question of statutory construction: The Act does not require a governmental body to produce what does the Texas Public Information Act mean when public information that is “considered to be confidential by it refers to a “part, section, or portion” of an entity law, either constitutional, statutory, or by judicial decision.” that is “supported in whole or in part by public funds”? Id. § 552.101. The Act itself provides numerous other Id. Purporting to rely on “[f]amiliar interpretive guides exceptions to its disclosure requirement, which include, and established canons of construction,”ante at ––––, the among other things, certain personnel records, id. § 552.102, Court discards over forty years of legal interpretations and litigation records, id. § 552.103, information that “would announces a brand new interpretation that, at best, reflects the give advantage to a competitor or bidder,”id. § 552.104, Court's concerns instead of the Legislature's language. In light attorney-client information, id. § 552.107, trade secrets and of the Court's analysis, and to place the issue in perspective, commercial financial information, id. § 552.110, personal I begin by highlighting the Act's relevant requirements, the and family information of governmental employees, id. reasons for its enactment, prior constructions of the language § 552.117(a), and “information [that] relates to economic development negotiations involving a governmental body

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and a business prospect that the governmental body seeks TEX. , www.texasattorneygeneral.gov/opinion/about- to have locate, stay, or expand in or near the territory of attorney-general-opinions (last visited June 22, 2015). the governmental body,”id. § 552.131(a). The Act does not In addition, the Public Information Act authorizes and allow a governmental body to unilaterally decide for itself requires the Attorney General to issue a “decision,” in the form of a “written opinion,” announcing whether it can withhold requested information. Instead, a whether a governmental body may withhold information governmental body that wishes to withhold information in in response to a request under the Act. TEX. response to a request must ask the Attorney General to GOV'T CODE §§ 552.301(a), .306(a), (b). Pursuant decide whether the information fits within one of the Act's to this authority, Attorneys General sometimes issue exceptions. Id.§ 552.301(a). “open records decisions,” which “are formal opinions relating to the Public Information Act” that “usually *14 It is difficult to overstate the Attorney General's role address novel or problematic legal questions and are in this process. The Act assigns to the Attorney General the signed by the Attorney General.” See Open Records duty to “maintain uniformity in the application, operation, Decisions (ORDS),OFFICE OF THE ATT'Y GEN. OF and interpretation” of the Act and authorizes the Attorney TEX. , www.texasattorneygeneral.gov/og/open-records- General to “publish any materials, including detailed and decisions-ords (last visited June 22, 2015). These comprehensive written decisions and opinions, that relate decisions are named numerically using the initials to or are based on this chapter.” Id. § 552.011. Upon “ORD” as a prefix. See id. More often, Attorneys General have resolved open records questions by issuing “open receipt of a governmental body's request for a decision, records letter rulings,” which “[u]nlike Open Records the Attorney General considers comments and arguments Decisions, [are] informal letter rulings ... applicable from any interested person, id. § 552.304(a), and then must only to the specific documents and circumstances “promptly render a decision” on whether the requested surrounding them[.]” See Open Records Letter Rulings information is within one of the Act's exceptions, id.§ (ORLs),OFFICE OF THE ATT'Y GEN. OF TEX. , 552.306(a); see also id.§ 552.306(b) (requiring the Attorney www.texasattorneygeneral.gov/open/index_orl.php (last General to issue “a written opinion” and provide a copy visited June 22, 2015). These rulings are named to the requestor). Through its Open Records Division, the numerically using the initials “OR” and the year of Attorney General's Office issues thousands of open records issuance as a prefix. See id. Through the years, Texas letter rulings every year, including more than 23,000 in 2014, Attorneys General have utilized all three methods to address open records issues, including the issue of what and it is on pace to surpass that number this year. 4 If constitutes a “governmental body” under the Act. a governmental body fails to request an Attorney General decision when and as required, the requested information “is If a governmental body refuses to request an Attorney presumed to be subject to required public disclosure and must General decision or refuses to produce public information be released unless there is a compelling reason to withhold or information that the Attorney General has determined the information.” Id. § 552.302. is public and not excepted from disclosure, the Attorney General or a requestor may file suit for a writ of 4 mandamus compelling the governmental body to make See Open Records Letter Rulings (ORLs),OFFICE the information available. Id.§ 552.321. Conversely, a OF THE ATT'Y GEN. OF TEX. , www.texasattorneygeneral.gov/open/index_orl.php (last governmental body may file suit against the Attorney visited June 22, 2015). Texas law authorizes the General, seeking declaratory relief from compliance with the Attorney General to announce legal determinations in Attorney General's decision. Id. § 552.324(a). In that suit, various forms. The Government Code, for example, however, a governmental body can only rely on exceptions authorizes the Attorney General to provide “a written it asserted when it requested the Attorney General's decision, opinion” to certain governmental officials addressing unless the exception is based on a federal law requirement or “a question affecting the public interest or concerning involves another person's property or privacy interests. Id. § the official duties of the requesting person.” TEX. 552.326(a), (b). GOV'T CODE § 402.042(a). The Attorney General's determinations under this authority are commonly *15 The Act's requirements apply only to a “governmental referred to as “attorney general opinions” and are body,” which the Act defines to mean: named numerically using the initials of the issuing Attorney General as a prefix. See About Attorney General Opinions,OFFICE OF THE ATT'Y GEN. OF

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The Public Information Act is unique in its extensive (i) a board, commission, department, committee, explanation of the policies that led to its enactment. As institution, agency, or office that is within or is the Court explains, the Legislature first adopted the Act in created by the executive or legislative branch of state response to the “Sharpstown scandal.” Ante at ––––. The government and that is directed by one or more elected Act begins by expressing the “fundamental philosophy” that or appointed members; “government is the servant and not the master of the people” and “the policy of this state that each person is entitled, (ii) a county commissioners court in the state; unless otherwise expressly provided by law, at all times to (iii) a municipal governing body in the state; complete information about the affairs of government and the official acts of public officials and employees.” TEX. (iv) a deliberative body that has rulemaking or quasi- GOV'T CODE § 552.001(a). While the people of Texas judicial power and that is classified as a department, have delegated governing authority to public employees, they agency, or political subdivision of a county or “do not give their public servants the right to decide what municipality; is good for the people to know and what is not good for them to know.” Id. Because “[t]he people insist on remaining (v) a school district board of trustees; informed so that they may retain control over the instruments they have created,” the Act expressly provides that it “shall (vi) a county board of school trustees; be liberally construed to implement this policy.” Id. Courts (vii) a county board of education; must construe the Act's provisions “in favor of disclosure of requested information.” Jackson v. State Office of Admin. (viii) the governing board of a special district; Hearings, 351 S.W.3d 290, 293 (Tex.2011); see also TEX. GOV'T CODE § 552.001(b) (“This chapter shall be liberally (ix) the governing body of a nonprofit corporation construed in favor of granting a request for information.”). organized under Chapter 67, Water Code, that provides a water supply or wastewater service, or both, and is exempt from ad valorem taxation under Section 11.30, C. Prior Constructions of the Act Tax Code; *16 Pursuant to their responsibility to “maintain uniformity (x) a local workforce development board created under in the application, operation, and interpretation” of the Section 2308.253; Act, TEX. GOV'T CODE § 552.011, Texas Attorneys General have issued numerous opinions addressing whether (xi) a nonprofit corporation that is eligible to receive private entities—including several chambers of commerce funds under the federal community services block grant and similar organizations—were “supported in whole or in program and that is authorized by this state to serve a part by public funds.” Respecting the Attorney General's geographic area of the state; and unique role, courts have given deference to Attorney General (xii) the part, section, or portion of an organization, interpretations and applications, most notably the Fifth corporation, commission, committee, institution, or Circuit in Kneeland v. National Collegiate Athletic Ass'n, 850 agency that spends or that is supported in whole or in F.2d 224, 228 (5th Cir. 1988). part by public funds[.]

Id.§ 552.003(1)(A)(i)–(xii). The question here is whether the 1. Pre-Kneeland Attorney General Decisions Greater Houston Partnership is “supported in whole or in In 1973, shortly after the Act became effective, the Attorney part by public funds,” and thus a “governmental body” under General's very first open records decision addressed the part (xii). “Public funds” means “funds of the state or of a statutory language we address today and concluded that a governmental subdivision of the state.” Id.§ 552.003(5). private bank was not “supported in whole or in part by public funds” merely because it received and held deposits of B. Reasons for the Act public funds. Tex. Att'y Gen. ORD–1 (1973). Six years later, the Attorney General concluded that an organization very similar to the Partnership—a private, nonprofit corporation

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chartered to promote the interests of the Dallas–Fort Worth Att'y Gen. Op. No. JM–116 (1983) (quoting Tex. Att'y Gen. metropolitan area—was a governmental body under the Act. ORD–228). The conference's constitution stated one of its Tex. Att'y Gen. ORD–228 (1979). Pursuant to a contract, purposes was to aid members in incorporating intercollegiate the City of Fort Worth paid the corporation $80,000 to athletics within their educational programs and to “place “[c]ontinue its current successful programs and implement and maintain such athletics under the same administrative such new and innovative programs as will further its corporate and academic control.” Id. The constitution did not identify objectives and common City's interests and activities” over a any specific, measurable services that the conference would three-year period. Id. The Attorney General concluded that, provide in exchange for the public funds. Id. by using the phrase “supported in whole or in part,” the Legislature “did not intend to extend the application of the *17 The Attorney General later determined that a private Act to private persons or businesses simply because they high school and a private nonprofit water supply corporation provide specific goods or services under a contract with a were not governmental bodies because neither of them governmental body.” Id. But this contract did not “impose received any public funds. Tex. Att'y Gen. Op. Nos. JM– a specific and definite obligation on the [corporation] to 154 (1984), JM–596 (1986). Then, in 1987, the Attorney provide a measurable amount of service in exchange for a General concluded that a volunteer fire department was a certain amount of money as would be expected in a typical governmental body under the Act because fire protection is arms-length contract for services between a vendor and “traditionally provided by governmental bodies,” volunteer purchaser.” Id. Thus, not every “contract with a governmental fire departments have “strong affiliations with public body causes the records of a private contractor to be open,” agencies,” and the contract provided the department with but a private entity is supported by public funds, and is thus a funds “to carry on its duties and responsibilities,” which “governmental body,” when the public funds are “used for the the Attorney General considered to be for its “general general support of the [entity] rather than being attributable support.” Tex. Att'y Gen. Op. No. JM–821 (1987). The to specific payment for specific measurable services.” Id. Attorney General stated that the “test” for whether an entity is a governmental body under the Act “cannot be applied Three years later, the Attorney General relied on ORD–228 to mechanically” and that the “precise manner of funding is not find that another chamber-of-commerce-like organization— the sole dispositive issue.” Id. Instead, the Attorney General a private, nonprofit entity created to promote manufacturing considered “[t]he overall nature of the relationship,” and and industrial development in the Bryan area—was a concluded “a contract or relationship that involves public governmental body because the City of Bryan's contractual funds and that indicates a common purpose or objective or payment of $48,000 was like an “unrestricted” grant, that creates an agency-type relationship” will bring the private rather than payment for specific measurable services. Tex. entity within the Act's definition of governmental body. Id. Att'y Gen. ORD–302 (1982) (noting that the situation was “virtually identical” to that in ORD–228). That same year, the Attorney General concluded that a private medical 2. Kneeland v. NCAA service provider for the Amarillo Hospital District was not a In 1988, the Fifth Circuit was asked whether the National governmental body under the Act because the parties' contract Collegiate Athletic Association (NCAA) and the former prescribed specific measurable services, including ambulance Southwest Conference (SWC), which received public funds services, for which the provider received a monthly sum from several Texas public universities, were “supported in “equal to the difference between cash receipts and approved whole or in part by public funds” and thus “governmental operating expenditures of the ambulance service.” Tex. Att'y bodies” under the Act. Kneeland, 850 F.2d at 228. In Gen. ORD–343 (1982). addressing this issue, the Court expressly based its analysis on the Attorneys General's prior decisions, noting that The following year, the Attorney General determined “[t]he usual deference paid to formal opinions of state that a proposed athletic conference consisting of member attorneys general is accentuated in this case because the universities would be a governmental body under the Act Texas Legislature has formally invited its Attorney General because each university would pay an upfront “membership to interpret the Act when asked to do so.” Id. at 228– fee” and subsequent annual fees that would be used for the 29. Construing the statute's language and extrapolating conference's “general support ... rather than being attributable principles from the Attorneys General's decisions, the Court to specific payments for specific measurable services.” Tex. cobbled together the following criteria—now known as the

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“Kneeland test”—for determining whether a private entity is the San Antonio Chamber of Commerce to coordinate the “supported ... by public funds” and thus a governmental body annual Fiesta celebration was not a governmental body. under the Act: Tex. Att'y Gen. ORD–569 (1990). The city designated the commission as its “official agency” responsible for planning, • “The Act does not apply to ‘private persons or businesses coordinating, and financially supporting the festival and gave simply because they provide specific goods or services the commission the right, subject to necessary approvals, under a contract with a government body.’ ” Id. at 228 to lease city-owned premises, obtain permits for parades (quoting Tex. Att'y Gen. ORD–1). and concession stands along parade route, grant permission to place seating along parade route, and assign its permit • “[A]n entity receiving public funds becomes a and lease rights to other entities sponsoring the event. governmental body under the Act, unless its relationship Id. The Attorney General nevertheless concluded that the with the government imposes ‘a specific and definite commission was not a governmental body because it did obligation ... to provide a measurable amount of service not receive any public funds. Id. (“The threshold question is in exchange for a certain amount of money as would be whether the commission receives any funds from the City of expected in a typical arms-length contract for services San Antonio.”). The Attorney General rejected the argument between a vendor and purchaser.’ ”Id. (quoting Tex. that money the commission received from the sale of tickets Att'y Gen. Op. No. JM–821, which quotes Tex. Att'y for seating along the parade route was “public funds” because Gen. ORD–228). the money would otherwise have been paid to the city. Id. • “[A] contract or relationship that involves public funds (“By requiring the commission to get a permit for erecting and that indicates a common purpose or objective or that bleachers and limiting the charge per seat, the city is not creates an agency-type relationship between a private granting public funds to the commission, nor do the charges entity and a public entity will bring the private entity for seats constitute funds of the city.”). within the ... definition of a ‘governmental body.’ ” Id. (quoting Tex. Att'y Gen. Op. No. JM–821). *18 In 1992, the Attorney General concluded that the Dallas Museum of Art was a governmental body under the Act, • “[S]ome entities, such as volunteer fire departments, even though it received 85% of its revenue from private will be considered governmental bodies if they provide sources. Tex. Att'y Gen. ORD–602 (1992). The city owned ‘services traditionally provided by governmental some of the artwork at the museum, owned and maintained bodies.’ ” Id. (quoting Tex. Att'y Gen. Op. No. JM–821). the premises housing the museum, and paid the museum's utilities, half of the museum employees' salaries, and a pro Based on these principles and the Attorneys General's rata portion of the insurance premiums. Id. The museum decisions from which they were drawn, the Kneeland court admitted that it received public funds but argued that it held that the NCAA and SWC were not governmental bodies received the funds in exchange for “known, specific, and under the Act. Id. at 230–31. With respect to the NCAA, measurable services” as opposed to general support. Id. the court concluded that the universities “receive[d] a quid Relying on Kneeland and the prior decisions, the Attorney pro quo, in sufficiently identifiable and measurable quantities General disagreed, concluding that while the city received of services,” in exchange for the public funds they paid “valuable services in exchange for its obligations” to the to the NCAA. Id. at 230. Similarly, the court concluded museum, those “highly specialized, unique services” could that the SWC provided “specific and guageable services not be “known, specific, or measurable,” and the city thus which negate[d] the general support element required for a instead provided funds for the museum's general support. Id. governmental body designation.” Id. at 231. The Attorney General nevertheless held that the museum was not required to disclose the requested records because only the part of the museum supported by public funds was a 3. Post-Kneeland Attorney General Decisions governmental body, and the records related to a collection the museum owned as part of its permanent collection, not to Attorneys General have had several opportunities to address the part of the museum for which the city provided “direct the issue since Kneeland, and in doing so have adopted support.” Id. (noting the city's ownership of the building in the federal court's synopsis of the principles from their which the collection was housed and its payment of a portion prior decisions. A few years after Kneeland, the Attorney of the overhead expenses was “tangential” and “insufficient General concluded that a private commission created by

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to bring documents relating to the collection within the scope contract, the [Partnership] has not sufficiently demonstrated of the act”). that the nature of the services it provides are known, specific, or measurable.” Id. “Consequently,” the Attorney Again addressing chamber-of-commerce-type entities, the General concluded, “the [Partnership's] records concerning Attorney General conducted a similar analysis in holding its operations that are directly supported by governmental that the Arlington Chamber of Commerce and the Arlington bodies are subject to the Act as public information.” Id. Economic Development Foundation were governmental (emphasis added). bodies under the Act. SeeTex. Att'y Gen. ORD–621 (1993). The foundation admitted that it received public funds but In addition to arguing that it was not a governmental body, argued that it did so in exchange for specific, measurable the Partnership alternatively relied on the Act's exceptions to services. Id. The Attorney General disagreed, concluding that disclosure for certain economic development information and while the city received “valuable services in exchange for for certain email addresses. Seeid.; TEX. GOV'T CODE §§ the public funds,” the agreement failed “to impose on the 552.131 (excepting certain information relating to economic foundation a specific and definite obligation to provide a development negotiations), 552.137 (excepting certain email measurable amount of services in exchange for a certain addresses). The Attorney General agreed in part and disagreed amount of money, as one would expect to find in a typical in part, instructing the Partnership to release some but not arms-length contract.” Id. The Attorney General concluded all of the documents submitted to the Attorney General for that the chamber of commerce was also a governmental body, review. SeeTex. Att'y Gen. OR2004–4221. even though it received public funds through the foundation rather than from the city directly. Id. *19 In 2007, the Attorney General again relied on Kneeland and the distinction between use of public funds for “general Eight years later, the Attorney General reached the same support” as opposed to payment for “specific and measurable result with respect to the Round Rock Chamber of Commerce, services” to conclude that a family planning service provider observing that its contract with the City of Round Rock that contracted with the Department of State Health Services neither restricted the chamber's use of the public funds it was a governmental body under the Act. Tex. Att'y Gen. received nor imposed any “specific and definite obligation to OR2007–06167 (2007). Similarly, in 2011, the Attorney provide a measurable amount of services in exchange for a General decided that channel Austin, a nonprofit corporation certain amount of money, as one would expect to find in a that contracted with the City of Austin “to manage the typical arms-length contract.” Tex. Att'y Gen. OR2001–4849 equipment, building, resources, and the three channels for (2001). Public Access,” received public funds as an “unrestricted grant” for its “general support rather than payment for specific And a few years after that, the Attorney General held that services.” Tex. Att'y Gen. OR2011–17967 (2011). the Greater Houston Partnership itself was a governmental body under the Act, under a similar analysis. Tex. Att'y In a 2008 formal opinion, the Attorney General observed, Gen. OR2004–4221 (2004). The Partnership specified in consistent with the Kneeland test, that it is sometimes its request for an Attorney General's ruling that the significant that the private entity has a “common purpose requested records related to a project being handled or objective or one that creates an agency-type relationship” by a specific part of the Partnership, the Economic with the governmental entity, or that it performs services Development Division. At that time, different contracts “traditionally provided by governmental bodies.” Tex. Att'y governed the Partnership's relationship with the City of Gen. Op. No. GA–666 (2008). But the Attorney General Houston. Examining those contracts' provisions—including explained that the “primary test” is “whether the entity one that obligated the Partnership to “support the efforts of receives public funds for the general support of its activities, the University of Houston Small [B]usiness Development rather than using those funds to perform a specific and Center in the conduct of the Director Business Assistance definite obligation.” Id. (determining that an association of Program, designed to assist and promote the efforts of local appraisal districts, which received membership fees from businesses and entrepreneurs to form new business ventures governmental entities in exchange for promoting “effective or to expand existing business ventures”—the Attorney and efficient functioning and administration of appraisal General determined that, “[a]lthough ... the city is receiving districts in Texas,” was a governmental body). Four years valuable services in exchange for its obligations under this later, the Attorney General held that a health services provider

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was a governmental body under the Act because the contract any other reports the Directors request; to produce any non- language evidenced a “common purpose or objective between confidential records the City Attorney requires to evaluate the the health service and the district such that an agency-type Partnership's compliance with the contract; and to inform the relationship [wa]s created.” Tex. Att'y Gen. OR2012–11220 City of any claims arising out of the Partnership's failure to (2012) (considering contract in which the parties agreed “to pay its employees, subcontractors, or suppliers. The contracts cooperate to provide services to the residents of Nacogdoches granted the City “full membership and exclusive benefits County who are in need of service avoiding duplication of as a General Partner” of the Partnership, which included services when possible” and “to refer patients for services, membership in the Partnership's policy-level committees, as needed, and in doing so will provide documentation for but prohibited the City from participating on any of the patient records when needed”). Partnership's governing boards.

The 2008 agreement differs from the 2007 agreement D. The Partnership's “Support” in several respects. While the 2007 agreement required the Partnership to “implement a program” to increase With the statute's language and these prior decisions in investments in the Houston area, the 2008 agreement mind, I turn to the facts at issue here. The Greater required the Partnership to provide “specific, measurable Houston Partnership is a private nonprofit corporation that services” to increase investments. While the 2007 contract functions as a chamber of commerce to promote job permitted the City to require the Partnership to terminate creation, increased trade, and capital investment in the any employee or subcontractor whose work the Directors greater Houston area. For many years, including 2007 and deemed unsatisfactory, the 2008 contract only required the 2008, the Partnership entered into an annual “Agreement for Partnership to “consider removing” any such employee or Professional Services” with the City of Houston, in which subcontractor. And unlike the 2007 agreement, the 2008 the Partnership agreed to perform certain marketing, research, agreement stated that the City's payments were solely for and promotional services designed “to increase investment services rendered and were not intended as general support in, and to improve the economic prosperity of Houston and for the Partnership's other activities, and expressly provided the Houston Airport System.” 5 The contracts required that that nothing in the agreement shall be construed to imply that the scope of the Partnership's services “support the goals, the Partnership is subject to the Texas Public Information Act. visions, and objectives outlined in the Partnership's Strategic Plan.”(Emphasis added). In exchange for these services, the In May 2008, 6 Houston-area resident Jim Jenkins submitted City agreed to pay the Partnership a lump sum amount of a Public Information Act request to the Partnership, asking $196,250.00 per quarter. The City's payments constituted less that it provide him with “a copy of the check register ... than 8% of the Partnership's total annual revenue, 90% of for all checks [the Partnership] issued for the year 2007,” which came from dues the Partnership's members paid. including “for each check issued: check number, check date, payee name, and check amount.” Jenkins later submitted a 5 The Local Government Code authorizes municipalities second request, seeking the same information for all checks to contract with private entities like the Partnership the Partnership issued in 2008. The Partnership refused to “for the administration of a program” to promote “local provide the requested information, and instead asked the economic development and to stimulate business and Attorney General to decide whether the Partnership is a commercial activity in the municipality.” TEX. LOC. “governmental body” subject to the Public Information Act. GOV'T CODEE § 380.001. The Partnership did not assert that only “a part, section, *20 The services agreements specified that the Partnership or portion” of the Partnership is “supported in whole or was an independent contractor, but they also gave the City in part by public funds,” as it had successfully argued in certain rights to participate in and control some of the 2004. SeeTex. Att'y Gen. OR2004–4221. Nor did it assert Partnership's activities. Among other things, the Partnership that any information in the check register was not “public agreed to coordinate its efforts with the directors of the information” or that one of the Act's exceptions applied, as City's Department of Convention & Entertainment Facilities, it had also asserted in 2004. See id. Instead, the Partnership Department of Planning and Development, and the Houston relied solely on its contention that it is not a governmental Airport System (the Directors); to submit quarterly progress body under the Act. reports “describing in detail services performed”; to provide

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6 The Partnership and City executed the 2008 services First, the Partnership contends the phrase “supported ... by agreement in August 2008, a few months after receiving public funds” unambiguously does not include the City's Jenkin's first request for information, which may explain contractual payments to the Partnership. Next, the Partnership the differences we have described between the 2007 and argues, even if the language is ambiguous, the Court should 2008 agreements. reject the Kneeland test because it is unclear and not Consistent with its 2004 ruling, the Attorney General's Open grounded in the statutory language. Third, if the Court does Records Division ruled that the Partnership is a governmental adopt the Kneeland test, the Partnership argues it is not body and must comply with the Act's requirements. Tex. “supported ... by public funds” even under that test. The Court Att'y Gen. OR2008–16062 (2008). The Partnership filed suit agrees with the Partnership's first argument—that the statute against the Attorney General to challenge the ruling, and unambiguously does not apply to the Partnership—but also Jenkins intervened. The trial court agreed with the Attorney notes its displeasure with the Kneeland test. I disagree. I General and held that the Partnership is a governmental body would hold that the statute is ambiguous, adopt but clarify under the Act. The Partnership appealed, and the court of the Kneeland test, and conclude that under that test the appeals affirmed, with one justice dissenting. 407 S.W.3d Partnership “is supported in whole or in part by public funds.” 776. We initially denied the Partnership's petition for review, but we later granted its motion for rehearing and its petition, to A. The Court's Interpretation address when a private entity may qualify as a governmental body under the Act. The Court begins its analysis by noting that the term “supported” can have several different meanings. Ante at __. Because “supported by” in the clause at issue refers II. specifically to “public funds,” the Court concludes that the Act focuses solely on monetary support. Ante at __. The Court then proceeds to identify two different requirements that must “Supported in Whole or In Part” each exist for a private entity to receive monetary “support,” which I will refer to as the “sustenance” requirement and the *21 The issue here is whether the Greater Houston “functional equivalent” requirement. Ante at ___ (agreeing Partnership is “supported in whole or in part by public funds” with Partnership's contention that definition only includes and is thus a “governmental body” under the Act. 7 The “entities that were created or exist to carry out government interpretation of the Act presents questions of law. City functions and whose existence are maintained in whole or in of Garland v. Dall. Morning News, 22 S.W.3d 351, 357 part with public funds”). Although the Court asserts that it is (Tex.2000). In light of the Act's strong policy in favor of simply applying a “plain language” approach to construing disclosure, a party seeking to withhold requested information the statute, ante at ___, and is not relying on any “extra-textual bears the burden of proving that the information is not subject analytical construct,” ante at ___, neither of the Court's two to disclosure under the Act. See Thomas v. Cornyn, 71 S.W.3d requirements appears anywhere in the statute's language. I do 473, 488 (Tex.App.–Austin 2002, no pet.)(holding that “a not agree that the Act's language “unambiguously” supports governing body should bear the burden of proving in a judicial the judicial insertion of either requirement into its definition proceeding that an exception to disclosure applies”). of a “governmental body.”

7 Although the Partnership has previously argued that requested records related solely to its Economic 1. The “Sustenance” Requirement Development Division, seeTex. Att'y Gen. OR2004– 4221 (2004), it has made no similar effort to identify or Addressing the first requirement, the Court says “supported” limit the Act to any particular sections or divisions in this can mean (and here must mean) “sustenance, maintenance, case. Our issue is therefore whether the Partnership, as a or both.” Ante at __. The Court provides this as the whole, is “supported in whole or in part by public funds,” “maintenance” definition of “supported”: “to pay the costs and not whether any particular “part, section, or portion” of: maintain; to supply with the means of maintenance (as of the Partnership is. lodging, food or clothing) or to earn or furnish funds for The Partnership makes three arguments as to why it is not maintaining[.]” Ante at __ (quoting WEBSTER'S THIRD a “governmental body” under the Public Information Act. NEW INT'L DICTIONARY 2297 (2002)). The Court then

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concludes that “supported” cannot mean “maintenance” in at least in part, by public funds,”ante at __ (emphasis this context because otherwise the definition would include added); and “any private entity that received any public funds,” and “even a paper vendor with hundreds of clients would qualify as • “we define ‘supported in whole or in part by public funds' a ‘governmental body’ merely by virtue of selling office to include only those private entities or their sub-parts supplies to a single state office.” Ante at __. sustained, at least in part, by public funds,”ante at ___ (emphases added). *22 In contrast to the “maintenance” definition, the Court gives this “sustenance” definition of “supported”: “to provide But despite these lip-service payments to the statute's a basis for the existence or subsistence of: serve as the source language, the Court repeatedly holds that an entity (or any of material or immaterial supply, nourishment, provender, part, section, or portion of an entity) that receives public fuel, raw material, or sustenance of.” Ante at __ (quoting funds as sustenance (as opposed to maintenance) is not a WEBSTER'S THIRD NEW INT'L DICTIONARY at 2297). governmental body unless it cannot survive and pursue its The Court thus distinguishes between the “maintenance” mission without those funds: meaning of “supported” and the “sustenance” meaning of • “defining ‘supported’ as ‘sustenance’ ensures that only an “supported” and concludes that in the context of the Act, entity, or its ‘part, section or portion,’ whose existence is “supported by” can only mean the latter, so the Act applies predicated on the continued receipt of government funds only to private entities “sustained, at least in part, by public would qualify as a ‘governmental body,’ ”ante at __; funds, meaning they would not perform the same or similar services without public funds.” Ante at __. • “[t]o be ‘sustained’ by public funds suggests the existence of a financially dependent relationship Although the Court reads far more into these two definitions between the governmental body and a private entity or of “support” than I find there, as explained below, I generally its subdivision,”ante at __; agree that the term “support” must refer here to monies paid as general funds to sustain the recipient, rather than funds • “a private entity would qualify under a financially paid as consideration for specific goods or services. But the dependent construction of ‘supported’ if it could not Court goes far beyond that principle today, and holds that pursue its mission and objectives without the receipt of an entity is “supported in whole or in part by public funds” public funds, even if that funding only partially financed only if the entity cannot survive without those funds. As a the entity's endeavors. In short, an entity ‘supported’ by result, the Court writes the words “in part” completely out public funds would not just receive government funds; it of the statutory definition. To be sure, the Court creates the would require them to operate in whole or in part,”ante appearance that it is actually enforcing the statute as written at __; by referring to the “supported ... in part” language several • “[the Partnership] is not ‘supported’ by public funds times in its opinion: because it receives only a small portion of its • “requires us to decide whether the term ‘supported’ revenue from government contracts[, a]nd even if these encompasses private entities ... sustained—in whole or government contracts were eliminated, it could continue in part —by [public] funds,”ante at ___ (emphasis to operate given the substantial revenue derived from added); other non-governmental sources,”ante at ___;

• “ ‘supported’ ... unambiguously includes only *23 • “the statute encompasses only those private entities those entities at least partially sustained by public dependent on the public fisc to operate as a going funding,”ante at __ (emphasis added); concern,”ante at ___; and

• “[the Partnership] is not wholly or partially sustained by • “An entity ... that does not depend on any particular public funds,”ante at ___ (emphasis added); revenue source to survive—public or private—is not sustained even in part by government funds,”ante at __. • “the [Act] applies only to entities acting as the functional equivalent of a governmental body that are ‘sustained’ The Court thus holds that a private entity that receives public funds can be a governmental body under the Act only if

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it cannot “survive” or “exist” or “pursue its mission and *24 A relevant illustration is this: even if only 5% of objectives” without those public funds, even if those funds the funds that support the Court's hypothetical corporate are just “one of several contributing sources.” I disagree. An subdivision were public funds, the subdivision would still be entity that is “sustained” (as the Court uses that word) by “supported in part ” by those funds, and would thus be a funds it receives from several different sources is sustained governmental body under the Act's plain language. An entity “in part” by the funds from each of those sources, even if it “supported ... in part by public funds” is a governmental could survive and pursue its mission without the funds from body, regardless of whether it could “survive” or “pursue its any one source. The Court asserts that “sustenance implies mission” without those funds. See id. The Court's construction that if the government ceased to provide financial support, reads this language out of the Act by requiring the whole of the entity would be unable to meet its financial obligations.” the entity to live or die by the public fisc. Ante at ___. But even if that were true, 8 “sustenance in part ” implies the exact opposite. If “part” of an entity's 2. The “Functional Equivalent” Requirement “sustenance” comes from one source, it is “sustained in part ” by that source even if it could survive without that part. The Court also holds that an entity is not “supported in whole or in part by public funds” unless it is “acting 8 The Court fails to identify any dictionary that defines as the functional equivalent of a governmental body,”ante “supported” to mean financially dependent upon for its at __, and providing “services traditionally considered very existence. See ante at __. While there are many governmental prerogatives or responsibilities,”ante at __. definitions of “support” that refer to “sustenance or As with its first requirement, the Court does not derive maintenance” or even “a basis for the existence or this requirement from the statutory definition at issue. subsistence of,” see ante at __ (emphasis added), none Subsection (xii) expressly identifies several types of entities of the definitions require an absolute dependence, and that typically are not public (or governmental) entities, in any event, the statute's definition expressly excludes including an “organization,” a “committee,” an “institution,” such a requirement by referring to support “in part.” and—importantly, here—a “corporation.” The Act says such The Court attempts to justify its “surviv[al]” requirement private entities are governmental bodies if they are “supported by suggesting that the statute's “ ‘in part’ language may in whole or in part by public funds,” not if they are acting envision a multi-division entity that does business with the as the “functional equivalent” of a governmental body or government, but not uniformly and not across all units.” performing traditional government responsibilities. TEX. Ante at ___. “For instance,” the Court explains, if a “large GOV'T CODE § 552.003(1)(A)(xii). The Court, however, corporation” has a “subdivision” that “is wholly funded by asserts three bases for imposing this requirement: (1) the Act's government contracts,” but the government funds are only “a “stated purpose”; (2) the statute's omission of “any broad relatively small portion of the corporation's total revenue,” the reference to private entities”; and (3) the “scope and nature corporation “may be said to be supported ‘in part’ by public of the eleven other types of entities more clearly described funds.” Ante at ___. This illustration confuses the statute's as a ‘governmental body’ in the same provision,”ante at __. reference to “supported in part” with its reference to the “part, I do not agree that any of these justifies writing the Court's section, or portion” of an entity. The statute provides that the “functional equivalent” requirement into the statute. “part, section, or portion” of an entity is a governmental body if it is “supported in whole or in part by public funds.” TEX. First, the Court suggests that requiring a private entity to GOV'T CODE § 552.003(1)(A)(xii). The Court is correct be the “functional equivalent” of a governmental body is that, if one subdivision of a large corporation is “supported necessary to ensure that our construction of “supported” is in whole ... by public funds,” then the corporation itself “compatible with” the Act's “stated purpose.” Ante at ___ is “supported ... in part by public funds.” But the statute This “stated purpose,” the Court explains, is to provide permits the corporation to limit the Act's application to the the public with “complete information about the affairs of subdivision by showing that only that subdivision (i.e., that government and the official acts of public officials and “part, section, or portion” of the corporation) is “supported employees” to “allow the public to ‘retain control over in whole or in part” by public funds. The illustration the the instruments they have created.’ ” Ante at __ (quoting Court “conceptualize[s]” has nothing to do with the Court's TEX. GOV'T CODE § 552.001(a)). Although the Court “surviv[al]” requirement. makes no effort to explain why this purpose necessitates or implies the “functional equivalent” requirement, I presume

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the Court finds hidden meaning in the purpose statement's string of particularly broad terms to reference private reference to the “affairs of government,” the “acts of public entities of all types: “the part, section, or portion of officials and employees,” and the “instruments... created,” an organization, corporation, commission, committee, as if the words I have emphasized exclude any purpose to institution, or agency that spends or is supported in whole or in part by public funds[.]”TEX. GOV'T CODE § require disclosure of information held by a private entity. 552.001(1)(A)(xii). The “omission” on which the Court But to emphasize a different word, the statute's purpose is to relies simply does not exist. provide “complete information” about those affairs, acts, and instruments. The Legislature may have believed that the only For the third (though “not dispositive”) reason for requiring way to ensure the public has “complete” information about a private entity to be the “functional equivalent” of a what their government is doing is to treat some private entities governmental body, the Court relies on the “canon of as governmental bodies under the Act. Whatever we may statutory construction known as noscitur a sociis.” Ante at __. presume about what the Legislature may have “believed,” This canon provides “that a word is known by the company what the Legislature “said” was that “governmental body” it keeps.” Fiess v. State Farm Lloyds, 202 S.W.3d 744, includes any entity “supported in whole or in part by public 750 (Tex.2006) (quoting Gustafson v. Alloyd Co., 513 U.S. funds,” not any entity that is the “functional equivalent” of a 561, 575, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)). It “directs governmental body. that similar terms be interpreted in a similar manner,”TGS– NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 *25 As a second reason for requiring a private entity to (Tex.2011), but there is no similarity between the words be the “functional equivalent” of a governmental body, the in definition (xii)—an “organization” or “corporation” that Court asserts that the definition does not include “any broad is “supported in whole or in part by public funds”—and those in the preceding definitions. If definition (xii) provided reference to private entities.” Ante at ___. 9 Assuming that the “general” language, following “specific and particularized Legislature “carefully omitted” any such “broad reference,” enumerations” in the first eleven definitions, then we would and presuming that the Legislature “purposefully selected” “treat the general words as limited and apply them only to the this omission, the Court concludes that the definition, “as same kind or class of [things] as those expressly mentioned.” applied to private entities, must be filtered through the Act's City of San Antonio v. City of Boerne, 111 S.W.3d 22, purpose and function of allowing access to instrumentalities 29 (Tex.2003). But definition (xii) uses specific language, of government,” and thus “only applies to private entities inherently different than the language of the other definitions, acting as the functional equivalent of the government.” Ante and thus refers to something specific, not just a catch-all to at ___. Respectfully, I fail to follow the Court's logic. It conclude the preceding definitions. Under noscitur a sociis, might be logical to conclude from the omission of any we should look to the words “immediately surrounding” “broad reference” to private entities that the Legislature did the phrase “supported by,” which include the words “public not intend to include all private entities as “governmental funds” and, importantly, “in whole or in part ” (which the bodies.” But it is illogical to conclude that the omission Court ignores). SeeBLACK'S LAW DICTIONARY 1224 of a “broad reference” somehow indicates which private (10th ed. 2014) (defining noscitur a sociis as “a canon of entities the Legislature intended to include and which it construction holding that the meaning of an unclear word or did not. And it is simply preposterous to conclude that the phrase, esp. one in a list, should be determined by the words omission somehow indicates that they intended to include immediately surrounding it”). “only those entities acting as the functional equivalent of the government.” Ante at ___. We need not engage in such Even if the Court were applying the doctrine of noscitur a sophistry, because the statute tells us which private entities sociis correctly here, that doctrine cannot be used to render the Legislature intended to include as governmental bodies: express statutory language meaningless. “If ... the specific those that are “supported in whole or in part by public funds.” terms exhaust the class of items enumerated in the statute, TEX. GOV'T CODE § 552.003(1)(A)(xii). The Court finds it must be presumed that any generic term that follows support for its judicially created functional equivalent test must refer to items transcending the class, since a contrary only by manufacturing a “broad reference” to stack upon its construction ‘would contravene the more important rule of misconstruction of the Act's “stated purpose.” construction that all words are to be given effect.’ ” Shipp v. State, 331 S.W.3d 433, 437 (Tex.Crim.App.2011) (quoting 9 This assertion is simply wrong. The very definition at 2A NORMAN J. SINGER & J.D. SHAMBIE SINGER, issue “broadly refers” to private entities by using a

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SUTHERLAND STATUTORY CONSTRUCTION § 47:21 interpretations of Public Information Act are persuasive but at 390–91 (7th ed.2007)); see also Columbia Med. Ctr. of not controlling). But I would also clarify the Kneeland test to Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.2008) provide greater simplicity and guidance. (“The Court must not interpret the statute in a manner that renders any part of the statute meaningless or superfluous.”); City of San Antonio, 111 S.W.3d at 29 (rejecting construction 1. Ambiguity that would render some statutory language unnecessary and The Court and the parties agree that not every private citing Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597, entity that contracts with the government and receives 601 (1915), for the proposition that “[i]t is an elementary payments of public funds is “supported ... by public funds.” rule of construction that, when possible to do so, effect More specifically, they agree with the Attorneys General's must be given to every sentence, clause, and word of a conclusion that an ordinary, arms-length transaction between statute so that no part thereof be rendered superfluous or a private party and a governmental entity does not render inoperative”). We must “read the statute contextually,” Office the private party a “governmental body” under the Act. of Att'y Gen., 422 S.W.3d at 629, considering the relevant They agree that something more is required, but they dispute language in the context of the statute as a whole, rather whether that something is present here. I too agree that than as “isolated provisions,” TGS–NOPEC Geophysical, 340 something more is required, but I conclude that the statute is S.W.3d at 439, and endeavoring to “giv[e] effect to every word, clause, and sentence,”In re Office of Att'y Gen., 422 ambiguous as to what that something is. 10 S.W.3d 623, 629 (Tex.2013), so that none of the language is rendered superfluous, see Crosstex Energy Servs., L.P. v. 10 The Court argues that “governmental body” should not Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex.2014). Because the include every single vendor who sells a product or Court's construction renders the phrase “in whole or in part service to the government in a quid pro quo transaction, ” meaningless, I do not agree that definition (xii) includes and cites authority from other jurisdictions to support “organizations” and “corporations” only if they “function as this contention. This is, of course, a straw man argument, as everyone in the case agrees that we cannot construe quasi-public” entities. Ante at ––––. the term that broadly. But merely because one extreme construction is available that would lead to an (arguably) absurd result does not mean that every less extreme B. A More Accurate Interpretation construction within the range from narrowest to broadest *26 If a statute's words are susceptible to two or more possible constructions is unreasonable. Moreover, no one reasonable interpretations, and we “cannot discern legislative argues that the Partnership is merely an ordinary vendor under the contracts at issue here. intent in the language of the statute itself,” the statute is ambiguous, and we may rely on applicable canons of The phrase “supported by” can have multiple common, statutory construction. Tex. Lottery Comm'n v. First State ordinary meanings, including: Bank of DeQueen, 325 S.W.3d 628, 639 (Tex.2010). I would conclude that the words “supported by” are ambiguous in 1. To carry the weight of, exp. from below. this context, and would thus grant deference to the Attorneys 2. To maintain in position so as to keep from falling, General's long-standing construction of the Act's definition sinking, or slipping. of a “governmental body.” See Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 629–30 (Tex.2013) (stating 3. To be able to bear: WITHSTAND. that we grant deference to construction of agency that is charged with enforcement of statute if statute is ambiguous, 4. To keep from failing or yielding during stress. agency interpretation results from formal proceedings, and 5. To provide for, by supplying with money or necessities. interpretation is reasonable). Though not controlling, I would consider the Attorney General constructions to be persuasive, particularly in light of the responsibility the Legislature has 6. To furnish corroborating evidence for uniformity in the application of the Act. See TEX. GOV'T CODE § 552.011; see also City of Dall. v. Abbott, 304 S.W.3d 7. To aid the cause of by approving, favoring, or advocating 380, 384 (Tex.2010) (observing that Attorneys General's

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part by public funds” is ambiguous, and thus turn to existing 8. To endure: tolerate. precedents—and specifically Attorney General decisions and

9. a. To act (a part or role). b. To act in a secondary or the Kneeland test—or further guidance. 11 subordinate role to (a leading performer). 11 A statute is ambiguous if two or more plausible WEBSTER'S II NEW COLLEGE DICTIONARY 1108 constructions are reasonable. Tex. Lottery Comm'n, (1995). 325 S.W.3d at 639. The Court finds the phrase “supported in whole or in part by public funds” I agree with the Court that most of these definitions do unambiguous, although it suggests that two of the not apply in this statutory context, which limits “support” dictionary definitions (“sustenance” and “maintenance”) to a function that can be performed by money. See TGS– are “remotely possible.” Ante at ––––. The Court pursues NOPEC Geophysical, 340 S.W.3d at 441 (using statutory a backwards approach to the ambiguity analysis: it relies context to eliminate inapplicable meanings of a word in on context, purpose, and canons of construction first to the statute). An ordinary reader could construe some of exclude every possible meaning of the word “supported” except two, then to exclude all but the most narrow the broader definitions to include financial “support”: e.g., of those two “possible” definitions, and then declares public funds could “carry the [financial] weight of” an that the term is “unambiguous” because there's only entity. SeeWEBSTER'S II NEW COLLEGE DICTIONARY one “reasonable” definition.” I find the term ambiguous at 1108. In context, the most relatable definition is “[t]o because, even in context and considering the statute's provide for, by supplying with money or necessities.” Id. purpose, it is susceptible to more than one reasonable The Partnership relies on this common meaning and argues meaning, and I thus turn to canons of construction and that, just as a person “pays” an employee but “supports” a persuasive authorities for assistance in determining what family member, the City “paid” rather than “supported” the the statute's actual language must mean. Partnership. But even this definition of “support” does not resolve the statute's ambiguity because the statute requires 2. A Clarified Kneeland Test only that the entity be supported “in whole or in part ” by public funds. TEX. GOV'T CODE § 552.003(1)(A)(xii) Although this Court has not previously construed the Act's (emphasis added). “supported by” language, the Fifth Circuit has in Kneeland, and Attorneys General have since consistently relied on the *27 As the Court notes, in the broadest sense, virtually any Kneeland test as the governing standard. The Partnership income from public funds could reasonably be considered to urges us to reject the Kneeland test, asserting that it “has no “provide for” the Partnership “in part” by supplying it with basis in the statutory text” and leaves too much uncertainty money, even if the City pays the money in exchange for in the law. The Attorney General counters that the Kneeland specific goods or services rendered. Ante at ––––; see also test “satisfies the legislature's intent[ ] to shed light on the Tex. Ass'n of Appraisal Dists., Inc. v. Hart, 382 S.W.3d 587, affairs of government” and “provides a workable framework 591–92 (Tex.App.–Austin 2012, no pet.)(observing that the for determining whether an entity is a governmental body dictionary definitions of “support” are “so broad and varied under the [Act] because it treats entities functioning as that any private entity that receives any public funds can be governmental bodies as such while eliminating vendors said to be, at least in part, ‘supported’ by those public funds,” providing goods and services through arms-length contracts yet all authorities have agreed that “simply receiving public from the definition.” funds does not make a private entity a ‘governmental body’ under the [Act]”). The same problem results from the Court's I would conclude that the Kneeland test and its related definition of “supported” to mean “to provide a basis for precedent offer persuasive, though not controlling, legal the existence or subsistence of.” Ante at ––––. At least “in authority. See Christus Health Gulf Coast v. Aetna, Inc., 237 part,” the City's payments for chamber-of-commerce services S.W.3d 338, 343 & n.8 (Tex.2007) (noting that Fifth Circuit provide a reason for the Partnership's existence and enable precedent is persuasive but not binding on this Court) (citing it to “pursue its mission,” and the City's payments for those Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 services constitute at least a “part” of the revenue that sustains (Tex.1993)). The test is founded on deference to the Attorneys the Partnership. See ante at ––––. I would conclude that the General's interpretations of the Act, which are likewise Act's reference to entities that are “supported in whole or in persuasive but not controlling. See City of Dall., 304 S.W.3d

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at 384. The Court complains that the Kneeland test has a funds” as a result of such transactions, at least as the “questionable foundation,” noting that even the Kneeland Act uses that term. Thus, a private entity that receives court acknowledged that its explanation of its holding was public funds in exchange for assuming an “obligation to “a mite uncertain.” Ante at –––– (quoting Kneeland, 850 provide a measurable amount of service in exchange for a F.2d at 224). But as the Court notes, it is the “direction certain amount of money as would be expected in a typical given” in Kneeland that the court described as “uncertain,” arms-length contract for services between a vendor and not the “foundation” on which the court relied. Although the purchaser” is not “supported by” those public funds, and is court acknowledged that its description of the test was less not a governmental body under the Act. CareFlite v. Rural than clear, “[o]ne may have no quarrel with the formulae” Hill Emergency Med. Servs., Inc., 418 S.W.3d 132, 141– it adopted. Kneeland, 850 F.2d at 228. I would take this 42 (Tex.App.–Eastland 2012, no pet.)(holding that medical opportunity to clarify the Kneeland test by articulating three service provider was not a governmental body); see also basic requirements for determining whether a private entity Hart, 382 S.W.3d at 595 (holding that association of appraisal that provides services to or for the government and is paid districts was not a governmental body). with public funds is “supported in whole or part by public funds” and is thus a governmental body under the Act. A second requirement for a private entity to be “supported ... by public funds,” then, should be that the private entity must receive public funds not as compensation or consideration paid in exchange for “specific goods” or “specific measurable a. Receipt of Public Funds services,” but as a general or unrestricted payment provided *28 First, to be “supported by” public funds, a private entity to subsidize or underwrite the private entity's activities. must at least “receive” public funds, so an entity that does not SeeTex. Att'y Gen. Op. No. GA–666; compareTex. Att'y Gen. receive public funds is not a governmental body under this ORD–228 (concluding that commission was governmental provision. Thus, while the Attorney General was cognizant body because it received public funds “used for [its] in JM–821 that the role of a volunteer fire department is one general support”); Tex. Att'y Gen. ORD–302 (concluding that “traditionally provided by governmental bodies,” this fact, promoter of manufacturing and industrial development was standing alone, is not enough. SeeTex. Att'y Gen. Op. No. governmental body because it was provided “unrestricted” JM–821. Arguably, at least, the private high school in JM– grant of public funds); Tex. Att'y Gen. Op. No. JM–116 154, the water supply corporation in JM–596, and the Fiesta (concluding that athletic association was governmental body planning commission in ORD–569 also provided services because it was provided public funds to be “used for [its] “traditionally provided by governmental bodies.” SeeTex. ‘general support ... rather than being attributable to specific Att'y Gen. ORD–569; Tex. Att'y Gen. Op. Nos. JM–154, payments for specific measurable services” ”), withTex. Att'y JM–596. But because they did not receive public funds, they Gen. ORD–343 (concluding that ambulance service provider were not governmental bodies under part (xii). See TEX. was not governmental body because it was paid specific GOV'T CODE § 552.003(1)(A)(xii). As the Attorney General amounts to cover specific, measurable services provided recognized, “[t]he threshold question is whether the [private under service contract). entity] receives any funds from the [public fisc].” Tex. Att'y Gen. ORD–569; see alsoTex. Att'y Gen. OR2013–09038 This requirement would most easily be met when a (determining that El Paso Zoological Society that received no governmental entity provides a “grant” to promote the public funds was not a governmental body). private entity's activities, but it may also be met when the governmental entity “pays” the private entity to provide services to or for the governmental entity or its constituents. The terminology that the parties choose to use should not be b. Support, Not Consideration determinative. A key factor in the context of a service contract like those at issue here would be whether the relationship Everyone agrees, however, that merely “receiving” public between the service provider and the governmental entity funds does not equate to being “supported by” those funds. is the kind of “quid pro quo ” relationship common in the Governmental entities regularly purchase a wide variety service industry, see Kneeland, 850 F.2d at 230, or whether of goods and services from private vendors, including the relationship is something more akin to a governmental everything from legal pads to legal services, and I agree body outsourcing governmental services to a private entity, that such vendors are generally not “supported ... by public

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seeTex. Att'y Gen. ORD–228, ORD–302; see also Hart, because the statute includes the “part, section, or portion” 382 S.W.3d at 595 (observing that association of appraisal of entities that are supported “in part” by public funds, it is districts did not perform services traditionally performed by the nature of the public funds (as support or sustenance and governmental bodies and instead provided services under not as compensation or consideration), and not the amount or conditions similar to what would be expected in typical arm's- percentage of the public funds, that matters. length transaction).

*29 In this context, I note that the Attorney General's ruling c. A Shared Common Purpose here should have come as no surprise to the Partnership, as Attorneys General have repeatedly concluded that Finally, to ensure that the funds are received as a general or chambers of commerce, seeTex. Att'y Gen. Nos. ORD–621 unrestricted payment to subsidize or underwrite the private (Arlington Chamber of Commerce), OR2001–4849 (Round entity's activities, a third requirement should be that the funds Rock Chamber of Commerce), chambers-of-commerce-like be intended to promote a purpose, interest, or mission that entities, seeTex. Att'y Gen. ORD–228 (entity chartered to the governmental and private entities share and would both promote interest of Dallas–Fort Worth metropolitan area), pursue even in the absence of their contractual relationship. ORD–302 (entity promoting manufacturing and industrial The mere existence of an “agency-type relationship” or development around City of Bryan), and even the Partnership a “common purpose or objective,” or even the fact that itself, seeTex. Att'y Gen. OR2004–4221, are governmental the service is one “traditionally provided by governmental bodies under the Act. But these conclusions are based on a bodies,” should not be sufficient by itself to meet this “fact-specific” analysis of the contract and context of each third requirement. SeeTex. Att'y Gen. Op. No. GA–666; case. See Kneeland, 850 F.2d at 228; see also CareFlite, Kneeland, 850 F.2d at 228–29. 12 It is not unusual for 418 S.W.3d at 138 (“The answer to the [governmental-body] an arms-length services vendor to take on an agency-type inquiry depends upon the circumstances of each case.”). As role for its customer, or for a governmental agency to the Attorney General has confirmed, a chamber of commerce enter into an arms-length contract for government services that is not “supported in whole or in part by public funds” is that the agency itself traditionally provides, and contracting not a governmental body under the Act. SeeTex. Att'y Gen. parties will ordinarily share at least the common objective of OR2015–05495 (2015) (finding Central Fort Bend Chamber effectuating the obligations and purposes of their contract. In of Commerce is not governmental body because it only ORD–343, for example, the Amarillo Hospital District and its received public funds as membership fees paid for specific ambulance service provider shared the common goal of the measurable services). contract: providing the people of Amarillo with emergency transportation to local hospitals. SeeTex. Att'y Gen. ORD– With regard to this second requirement, I would not dictate 343. But such relationships do not necessarily result in the that the public funds equal a particular amount or percentage governmental body “supporting” the private entity. of the entity's total revenue, nor would I mandate that the entity require those funds for its existence or survival. The Act 12 See alsoCareFlite, 418 S.W.3d at 142 (“[W]e have defines “governmental body” to include “the part, section, or not found [ ] any authority, primary or persuasive, portion” of an entity that is “supported in whole or in part that stands for the proposition that, if a private entity by public funds.” TEX. GOV'T CODE § 552.003(1)(A)(xii). and a governmental body share a common purpose Thus, public funds could make up only a small portion of or objective, the private entity is automatically a an entity's total revenues and yet provide general support, governmental body for purposes of the [Act]. Neither and even the sole support, for a particular part, section, or are we aware of any like authority when an entity portion of the entity, or support “in part” of the entity as provides services traditionally provided by governmental a whole. SeeTex. Att'y Gen. ORD–602 (holding that city bodies.”). provided general support to museum even though public *30 Instead, I would hold that a supportive relationship funds constituted only 15% of total revenue, but only portion exists when the parties share a true “identity of interests” that of museum that received “direct support” was a governmental each of them has beyond any particular transaction or finite body). Under this construction of the Act, that part, section, series of transactions between them. See Kneeland, 850 F.2d or portion of the entity is a governmental body under the at 228–29 (“[T]here apparently is some common purpose or Act, even if the rest of the entity is not. See id. In short, objective between the association and the universities, or they

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would not be drawn to each other, but there is no real identity consideration for specific, measurable services), the firm of interest and neither may be considered the agent of the would be a governmental body under the Act. other.”). The volunteer fire department in JM–821 provides In summary, then, I would clarify the Kneeland test and hold an example of this more extensive “identity of interests” that a private entity (or a part, section, or portion thereof) relationship. SeeTex. Att'y Gen. Op. No. JM–821. There, the is “supported in whole or in part by public funds,” and is private entity and the governmental entity each independently thus a governmental body under the Public Information Act, had the purpose of protecting citizens and property from fires if (1) the private entity receives public funds; (2) it does so and other hazards, and the governmental entity promoted the not as compensation or consideration made in exchange for private entity's pursuit of that purpose by providing “general “specific goods” or “specific measurable services,” but as support.” See id. a general or unrestricted payment provided to subsidize or underwrite the private entity's activities; and (3) the funds I would thus distinguish between (1) a situation in which provided are intended to promote a purpose, interest, or a private entity contractually undertakes a governmental mission that the governmental and private entities share and entity's objectives because the governmental entity agrees to would each pursue even in the absence of their contractual pay for those services, and (2) a situation in which a private relationship. entity and a governmental entity that each independently have the same purpose or interest, and thus an “identity of interest,” contractually agree to pursue that interest in cooperation and using public funding. See Kneeland, 850 F.2d at 228–29. For III. example, when a governmental entity hires a law firm to represent it in litigation, the firm and the government share Application to the Partnership interests and objectives specific to the firm's representation of that entity, but they do not necessarily have an “identity of *31 The Partnership, which undisputedly received public interests.” Although both the firm and the client may desire funds, asserts that its agreements with the City were arm's- and jointly pursue the same outcome from the representation, length, quid pro quo contracts that only obligated it to the firm's interest in achieving that outcome is transaction perform specific and measurable services. The Attorney specific: the law firm takes on that goal because the client General disagrees, contending that the Partnership was “paid pays it to do so, and but for the client-attorney relationship, a certain amount of money on a quarterly basis to accomplish the law firm generally has no stake in the outcome of the a broad range of goals designed to promote the City.” The Court agrees with the Partnership. Under the facts of this litigation. 13 record, I would conclude that the Partnership meets all three requirements for being “supported ... by public funds.” 13 Contrary to the Court's concern, this distinction would apply as effectively when the government contracts with a private firm to “provide more enduring and wide- A. Payments to Subsidize the Partnership's Activities ranging counsel” as it would when it hires a firm to handle a specific matter. See ante at ––––. In either case, The parties do not dispute, and I agree, that some of the third requirement (common purpose) typically would the provisions in the Partnership's contracts with the City not be met because it is not part of the law firm's mission imposed specific and definite obligations on the Partnership or purpose to achieve the specific objectives that the to provide a measurable amount of service. The court of government hires it to achieve, other than to fulfill its appeals also agreed, but found that the Partnership's “major obligation to its client. But if the government paid funds obligations under the contract are not specific, definite, or to a special interest firm whose mission as a firm was to tied to a measurable amount of service for a certain amount protect the environment, or promote a pro-life agenda, of money.” 407 S.W.3d at 784. The court provided these or increase health care for children, for example, this third requirement might be satisfied if the purpose of the examples of the Partnership's indefinite obligations to: government's payment was to “support” the firm's efforts • [i]dentify new business opportunities, secure economic to accomplish that mission. If the second requirement were also satisfied (i.e., the government paid the funds to incentives and increase outreach and recruitment subsidize or underwrite the firm's efforts, rather than as activities to the region's targeted key industries to

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strengthen the City of Houston as a competitive place to convention center. The Partnership also takes issue with the do business; court of appeals' observation that the Partnership does not perform its obligations “in exchange for a certain amount • partner with the airport system to recruit, relocate, and of money,” as the Partnership is paid a set amount on expand business which supports the master plan, and to a quarterly basis “regardless of whether or how much it identify business incentives available in both public and does in furtherance of the contract's goals.” According to private sectors; the Partnership, “this observation fails to acknowledge or appreciate that all payments under the contracts are made ‘in • make its research capabilities available to the City arrears and are contingent upon receipt and approval’ ” of the of Houston's convention and entertainment facilities Partnership's performance reports. department and its convention and visitor's bureau for marketing reports; *32 I agree with the court of appeals that while some of • support and coordinate with HAS to develop new the services the Partnership provides under the contracts are air routes, stimulate increased international trade and specific and measurable, the major obligations are broad business for Houston companies; and open-ended. Although the performance reports may identify specific services that the Partnership performed in • promote HAS stories in international markets and fulfilling those general promises, these after-the-fact reports highlight HAS efforts to provide airports allowance for of services the Partnership decided to provide do not impose expansion and ease of transportation; a contractual obligation on the Partnership to provide those specific services. And although the contracts provide that the • “coordinate on matters of mutual interest” before the U.S. City's quarterly payments to the Partnership are “contingent Congress, federal agencies, the Texas Legislature, and upon receipt and approval by the Director of [the] written Texas agencies; and progress reports in accordance with Article III(C),” that article merely authorizes the Director to require reports and • assist the City of Houston's mayor, should she ask for to determine their format and content; it does not authorize help, with “advancing various Economic Development the Director to dictate what services must be provided or and Marketing Initiatives.” included in the report or otherwise narrow the Partnership's Id. at 784. In light of these provisions, the court of appeals broad discretion to decide the types and amounts of services concluded that it could not “say that overall the contract here to provide. Finally, the fact that it might be difficult or imposes specific and definite obligations on [the Partnership] impossible for the contracts to provide greater detail about to provide a measurable amount of services to the City of some of the “intangible deliverables” does not weigh in favor Houston in exchange for a certain amount of money, as would of treating those provisions as if they called for “specific, be expected in a typical arms-length contract for services measurable services” when they do not. In ORD–602, the between a vendor and purchaser.” Id. Attorney General recognized that the “highly specialized, unique services” the museum provided to the City of Dallas The Partnership contends, and the Court apparently agrees, could not be “known, specific, or measurable,” but the that its contractually mandated performance reports provide Attorney General still concluded that the museum was, in the missing specifics for the broader obligations on which part, a governmental body under the Act. SeeTex. Att'y Gen. the court of appeals relied. The Partnership also asserts that ORD–602 (1992). some of its contractual obligations are necessarily vague because “in the context of intangible deliverables it would be As the court of appeals pointed out, the contracts at nearly impossible to provide greater details.” For example, issue do not tie the City's payments to the Partnership to the contracts require the Partnership to “make its research discrete services or measurable amounts of service. Instead, capabilities available on request to” the City of Houston's the City paid the Partnership a flat fee of $196,250 per convention and entertainment facilities department and its quarter, regardless of whether, or how, or how extensively convention and visitor's bureau “to facilitate the creation the Partnership made efforts to “identify new business of professional, sophisticated marketing reports,” but the opportunities, secure economic incentives, and increase City cannot predict all of the groups that might approach outreach and recruitment activities to the region's targeted it during the course of a year with an interest in the key industries to strengthen Houston as a competitive place

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to do business.” The absence of an identifiable link between *33 I now consider whether the City's funds were the services provided and the payment due, when considered intended to promote a purpose, interest, or mission that in conjunction with the lack of specificity and measurability the City and the Partnership share and would each pursue in many of the contract's service requirements, demonstrates even in the absence of their contractual relationship. The that the City paid the Partnership public funds to subsidize, evidence here readily establishes that this requirement is underwrite, and support the Partnership's activities. met. Independent from any contract with the City, the Partnership exists to promote job creation, increased trade, It is true that public funds make up only a small “part” of the and capital investment in the greater Houston area. As the Partnership's support. But when an entity, or “part, section, Court agrees, even without the City's contract, the Partnership or portion” of an entity, receives public funds for its general “could and would continue to promote the greater Houston support, the entity has broad discretion to use those funds economy to advance its own interests and those of its as it sees fit to accomplish its goals, and the entity shares more than 2,000 non-government members.” Ante at ––––. those goals with a public entity that would otherwise use the The City contracted with the Partnership because the City funds to accomplish those goals itself, the entity, or that “part, independently shares those same interests. The City did not section, or portion” of the entity, is “supported in whole or in pay the Partnership to provide services merely to promote part by public funds.” This does not mean that the public has the City's individual objectives, but to promote objectives a right to know how the Partnership spends all of its funds, that the City and the Partnership share. In fact, the contracts but the Partnership has made a tactical decision here not to required that the scope of the Partnership's services “support provide information about where the public funds go within the goals, visions, and objectives outlined in the Partnership's the Partnership or how the public funds are spent, so that Strategic Plan.” (Emphasis added.) The interest the City we could limit its duty to produce records under the Act to and Partnership share does not arise solely out of the “records concerning its operations that are directly supported parties' contractual relationship—both parties independently by governmental bodies,” as the Attorney General has done share these objectives. The City has an inherent motive to for the Partnership in the past. SeeTex. Att'y Gen. OR2004– promote its own financial interests, and promotion of the 4221 (emphasis added). City's economic development was a primary focus of the Partnership's purpose. Finally, as noted, the 2008 services agreement included language specifying that the City's funds were “solely Under these circumstances, I would hold that the Partnership for services rendered under this Agreement and are not was “supported in whole or in part by public funds” so intended to support [the Partnership] in any of its activities as to fall within the definition of a “governmental body” not specifically set forth in this Agreement.” But the under the Public Information Act. See TEX. GOV'T CODE determination of this issue must depend on the actual nature § 552.003(1)(A)(xii). of the services and payment obligations under the contract. The 2008 contract's conclusory statements that the contract does not render the Partnership a governmental body and IV. that the contract payments are not for general support do not make it so. Just as a governmental body cannot avoid the Act's requirements by promulgating rules, see Indus. Found. Policymaking of the S., 540 S.W.2d at 677, it cannot do so by contractually Although the Court acknowledges the Act's instruction that agreeing that the Act does not apply. Otherwise, every entity we construe it liberally in favor of a request for information, contracting with the government would shield itself from see id.§ 552.001(b), the Court chooses to adopt the most the Act simply by stating in the contract that it is not a narrow construction of “supported” possible, because a governmental body. In light of the broad, open-ended services broader construction would permit “public intrusion into the the Partnership agreed to perform under these contracts, I private affairs of non-governmental entities,”ante at ––––, would conclude that the second requirement is met. “pry open the sensitive records of private entities,”ante at –––– n.12, and subject the Partnership to “invasive disclosure B. Identity of Interests requirements,” ante at ––––. Even if we could construe the Act according to our preferred results rather than the text of the statute (which we cannot, or at least, should not), I find

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the Court's concerns to be not nearly as troubling as the Court government is doing. The Partnership asserts, “The stakes are suggests. tremendous.” 14

What the Court fails to acknowledge is that the Act 14 We have also received amicus briefs from several protects the Partnership's “sensitive records,” but the chambers of commerce arguing that the court of appeals' Partnership elected not to seek that protection. The Act holding, if allowed to stand, will be “catastrophic” for expressly excepts from disclosure all information that is chambers of commerce in Texas and will render them “confidential by law, either constitutional, statutory, or by “wholly unable to function.” judicial decision.” TEX. GOV'T CODE § 552.101. Even *34 I am not convinced that the effect of our determination if the information is not confidential by law, the Act still would or must be as drastic as either party, or the Court, excepts it from disclosure if, for example, it constitutes suggests. Although the Court concludes that the Partnership the Partnership's commercial or financial information and is not a governmental body, the Act still empowers the (as the Court assumes) its disclosure would cause the public to require the City to disclose all “information that is Partnership “substantial competitive harm.” Id. § 552.110(b). written, produced, collected, assembled, or maintained” by In fact, as the Court recently held, the Act excepts the or for the City “under a law or ordinance or in connection information if its release would even just “give advantage with the transaction of official business.” TEX. GOV'T to a competitor.” See Boeing Co. v. Paxton, No. 12–1007, CODE § 552.002(a)(1) (defining “public information”). This ––– S.W.3d ––––, –––– (Tex. June 19, 2015) (construing extends to not only the City's service agreements with TEX. GOV'T CODE § 552.104). And particularly apropos the Partnership and all reports and other information the to the Partnership's activities, the Act specifically excepts Partnership provided to the City under those contracts, but certain “information [that] relates to economic development also all information the Partnership collects, assembles, or negotiations involving a governmental body and a business maintains for the City “in connection with the transaction of prospect that the governmental body seeks to have locate, official business,” if the City “owns,” “has a right of access stay, or expand in or near the territory of the governmental to,” or “spends or contributes public money for the purpose body.” TEX. GOV'T CODE § 552.131(a). The Partnership of writing, producing, collecting, assembling, or maintaining did not assert any of these exceptions in this appeal. In fact, the information.” Id. § 552.002(a). Even if the requested it did not assert any exceptions at all, even though it has information is not in the City's actual possession, the Act still successfully asserted exceptions in the past. SeeTex. Att'y provides broad access to the Partnership's information related Gen. OR2004–4221. Nor did it ever contend that only a “part, to “the transaction of official business.” Id. section, or portion” of the Partnership is supported by public funds, even though it successfully made that assertion in the Conversely, if the Court concluded, as I do, that the past as well. See id. Partnership is a governmental body, the Partnership could still protect its confidential and commercially sensitive The Partnership contends that the court of appeals' decision information by relying on the Act's numerous exceptions. In represents a “vast overexpansion of the Public Information addition, the Partnership could assert (as it has previously Act to reach private business information that the public has asserted), that only a particular “part, section, or portion” of no inherent or legitimate right to know.” In response, the the Partnership is supported in whole or in part by public Attorney General asserts that the Partnership's construction funds, and only that “part, section, or portion” is required of the statute would permit governmental bodies to evade to disclose information in response to a public information public scrutiny by contracting with private entities to carry request. See id.§ 552.003(1)(A)(xii); see alsoTex. Att'y out government business. “If governmental bodies can Gen. OR2004–4221 (concluding that “the [Partnership's] shield information from public scrutiny by outsourcing records concerning its operations that are directly supported their business to private companies,” the Attorney General by governmental bodies are subject to the Act as public contends, “the purpose of the [Act] is frustrated.” In short, information”) (emphasis added). In its appeal to this Court, each party warns that the other's proposed construction however, the Partnership does not assert any exceptions, will have dire consequences, either destroying private does not contend that only a particular “part, section, or entities' ability to keep their private information private portion” of the Partnership was supported by public funds, or undermining the people's right to know what their and has made no other effort to protect the information in its check registers, other than to claim it is not a governmental

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109 S.W.3d 741, 748 (Tex.2003)) (alteration in F.F.P. body. It is a risky litigation strategy, and the Court should Operating Partners, 237 S.W.3d at 690). not let it motivate us to misinterpret the Act for fear that the Partnership's confidential financial information would otherwise be disclosed. V.

In any event, regardless of whether the effects will be as drastic as the Court, the Partnership, or the Attorney General Conclusion suggest, our job is to interpret and apply the statute as written, I would hold that the Greater Houston Partnership was not to rewrite it to achieve the policy outcomes they or we supported in whole or in part by public funds and would may prefer. See In re Tex. Dep't of Family & Protective Servs., thus agree with the Attorney General, the trial court, and the 210 S.W.3d 609, 614 (Tex.2006) (“It is not the Court's task to court of appeals that the Partnership is a governmental body choose between competing policies addressed by legislative for purposes of Jenkins's public information requests. The drafting. We apply the mandates in the statute as written.”) Partnership has not argued that only a particular “part, section, (citation omitted). 15 or portion” of the Partnership received public funds, or that any of the information at issue falls within one of the Act's 15 See also F.F.P. Operating Partners, L.P. v. Duenez, 237 exceptions to required disclosure. I would therefore affirm S.W.3d 680, 690 (Tex.2007) (“[W]e do not pick and the court of appeals' judgment requiring the Partnership to choose among policy options on which the Legislature disclose its 2007 and 2008 check registers pursuant to the has spoken. ‘Our role ... is not to second-guess the Public Information Act. policy choices that inform our statutes or to weigh the effectiveness of their results; rather, our task is to interpret those statutes in a manner that effectuates the All Citations Legislature's intent.’ ”) (quoting McIntyre v. Ramirez, --- S.W.3d ----, 2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

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for perfecting appeal, where judgment was not rendered as matter of law, but involved KeyCite Yellow Flag - Negative Treatment resolution of disputed factual matters apart from Declined to Extend by Odessa Texas Sheriff's Posse, Inc. v. Ector the filings. Vernon's Ann.Texas Rules Civ.Proc., County, Tex.App.-Eastland, October 26, 2006 Rule 215; Rules App.Proc., Rule 41(a)(1). 938 S.W.2d 440 Supreme Court of Texas. 28 Cases that cite this headnote

IKB INDUSTRIES (Nigeria) Limited, Petitioner, [2] Appeal and Error v. Extension of Time PRO–LINE CORPORATION, Respondent. 30 Appeal and Error 30VII Transfer of Cause No. 95–0703. | Jan. 31, 1997. 30VII(A) Time of Taking Proceedings 30k352 Extension of Time Corporation brought breach of contract and other claims 30k352.1 In general against second corporation. The 298th District Court, Dallas Not every case finally adjudicated without a jury County, Adolph Canales, J., dismissed action with prejudice trial is “case tried without a jury” within meaning based on first corporation's abuse of discovery process. of appellate rule under which, in case tried Following denial of its request for findings of fact and without a jury, timely filed request for findings conclusions of law, first corporation appealed. The Court of of fact and conclusions of law extends deadline Appeals, Whittington, J., 901 S.W.2d 568, dismissed appeal for perfecting appeal from 30 days to 90 days as untimely. On application for writ of error, the Supreme after judgment is signed; for example, request Court, Hecht, J., held that: (1) in case tried without a jury, for findings in case concluded by summary request for findings of fact and conclusions of law extends judgment does not extend appellate deadlines. time for perfecting appeal when such findings may be useful Rules App.Proc., Rule 41(a)(1). for appellate review, and (2) request in present case extended appellate deadlines because judgment was not rendered as 73 Cases that cite this headnote matter of law, but involved resolution of disputed factual matters apart from the filings. [3] Trial Application for writ of error granted; judgment of Court of Duty to Make in General Appeals reversed; case remanded. 388 Trial 388X Trial by Court Baker, J., filed a dissenting opinion. 388X(B) Findings of Fact and Conclusions of Law 388k388 Duty to Make in General 388k388(1) In general West Headnotes (5) (Formerly 228k392(1)) Purpose of rule under which, in any case tried in district or county court without a jury, any [1] Appeal and Error party may request court to state in writing its Extension of Time findings of fact and conclusions of law is to 30 Appeal and Error give a party a right to findings and conclusions 30VII Transfer of Cause finally adjudicated after a conventional trial on 30VII(A) Time of Taking Proceedings the merits before the court. Vernon's Ann.Texas 30k352 Extension of Time Rules Civ.Proc., Rule 296. 30k352.1 In general Plaintiff's request for findings of fact and 58 Cases that cite this headnote conclusions of law following dismissal of case as “death penalty” sanction for discovery [4] Appeal and Error abuse extended from 30 to 90 days the time

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Extension of Time Opinion 30 Appeal and Error 30VII Transfer of Cause HECHT, Justice. 30VII(A) Time of Taking Proceedings 30k352 Extension of Time [1] Here, the sole question is whether requesting findings of 30k352.1 In general fact and conclusions of law following dismissal of a case as a Extension of period for perfecting appeal when sanction for discovery abuse extends the time for perfecting party requests findings of fact and conclusions of appeal under Rule 41(a)(1) of the Texas Rules of Appellate law in case tried without a jury serves purpose Procedure. The court of appeals answered no. 901 S.W.2d of allowing trial court time to state basis for its 568. Under the circumstances of this case, as we explain, we judgment so that a party may determine whether disagree. to appeal; that purpose is served whenever such findings may be useful for appellate review, IKB Industries (Nigeria) Limited sued Pro–Line Corporation. as when case has been dismissed for discovery Pro–Line moved to dismiss IKB's action as a sanction for abuse. Vernon's Ann.Texas Rules Civ.Proc., discovery abuse. See TEX.R. CIV. P. 215. After a hearing, Rule 215; Rules App.Proc., Rule 41(a)(1). for which there is no statement of facts, the district court granted the motion, struck IKB's pleadings, and dismissed the 25 Cases that cite this headnote action with prejudice. The court's judgment recites that the court considered “the Court's file—including all pleadings, [5] Appeal and Error affidavits, and deposition excerpts filed with the Court (and Extension of Time of which the Court takes judicial notice) and .. . the testimony 30 Appeal and Error and argument of counsel.” (Emphasis added.) The judgment 30VII Transfer of Cause contains seven pages of findings that the court made, as the 30VII(A) Time of Taking Proceedings judgment recites, “from the evidence before it”. 30k352 Extension of Time 30k352.1 In general Notwithstanding these findings, IKB filed a request for Request for findings of fact and conclusions of findings of fact and conclusions of law, referencing Rule 296 law in case tried without a jury does not extend of the Texas Rules of Civil Procedure. Rule 296 states in part: the time for perfecting appeal of a judgment rendered as a matter of law, where findings and In any case tried in the district or conclusions can have no purpose and should not county court without a jury, any be requested, made, or considered on appeal; party may request the court to state however, when such findings may be useful for in writing its findings of fact and appellate review, timely filed request extends conclusions of law. Such request ... appellate deadline from 30 days to 90 days after shall be filed within twenty days after entry of judgment. Rules App.Proc., Rule 41(a) judgment is signed.... (1). IKB's request was filed eight days after the dismissal order 116 Cases that cite this headnote was signed. The district court did not respond to IKB's request.

A timely filed request for findings of fact and conclusions Attorneys and Law Firms of law extends the deadline for perfecting appeal from 30 to 90 days after the judgment is signed “in a case tried *440 Robert H. Westerburg, Dallas, for petitioner. without a jury.” TEX.R.APP. P. 41(a)(1). Since IKB filed a cost bond 49 days after the dismissal order was signed, Robert R. Gibbons, Dallas, for respondent. IKB perfected appeal only if its request for findings and *441 Before PHILLIPS, C.J., and GONZALEZ, CORNYN, conclusions extended the deadline for doing so from 30 to ENOCH, SPECTOR, OWEN and ABBOTT, JJ. 90 days—that is, only if the case was “tried without a jury” within the meaning of Rule 41(a)(1).

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county court without a jury”. Our approach to applying this [2] Not every case finally adjudicated without a jury trial language, similar to the language of Rule 41(a)(1), has also is “a case tried without a jury” within the meaning of been functional. A party is not entitled to findings of fact and Rule 41(a)(1). For instance, we held in Linwood v. NCNB conclusions of law following summary judgment, Linwood, Texas, 885 S.W.2d 102, 103 (Tex.1994), that a request for 885 S.W.2d at 103, judgment non obstante veredicto, Fancher findings in a case concluded by summary judgment does not v. Cadwell, 159 Tex. 8, 314 S.W.2d 820, 822 (1958), or extend appellate deadlines. The reason is not that a summary judgment after directed verdict, Ditto v. Ditto Investment Co.,, judgment proceeding is in no sense a trial. On the contrary, 158 Tex. 104, 309 S.W.2d 219, 220 (1958), again, not because we have held that “[a] summary judgment proceeding is a these adjudications are in no sense trials. Indeed, judgment trial within the meaning of Rule 63” of the Texas Rules non obstante veredicto is rendered after a full trial and verdict. of Civil Procedure, which governs amendment of pleadings. Rather, a party is not entitled to findings and conclusions in Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d such instances because judgment must be rendered as a matter 487, 490 (Tex.1988). True, a “summary judgment proceeding of law. Were there facts to find the three judgments we have is not a conventional trial but rather an exception to the listed are the only ones to which Rule 296 does not apply. usual and traditional form of procedure wherein witnesses are The point is simply that Rule 296, like Rule 41(a)(1), is not heard in open court and documentary evidence is offered and governed by a definition of the word, “trial”, common to both, received in evidence.” Richards v. Allen, 402 S.W.2d 158, but by their respective purposes. 160 (Tex.1966). But this distinction was not the basis for our decision in Linwood. The problem with a restrictive construction of Rule 41(a)(1) —not allowing a party's request for findings and conclusions Instead, Linwood takes a functional approach to Rule 41(a) to extend the time for perfecting appeal unless the party is (1). It holds, not that a summary judgment is not a trial entitled to findings and conclusions under Rule 296—is that within the meaning of the rule, but that “findings of fact and it conflicts with the purpose of Rule 41(a)(1). This is because conclusions of law have no place in a summary judgment the purposes of Rule 296 and Rule 41(a)(1) are not identical. proceeding”. Linwood, 885 S.W.2d at 103. The reason findings and conclusions “have no place” in a summary [3] The purpose of Rule 296 is to give a party a right to judgment proceeding is that for summary judgment to be findings of fact and conclusions of law finally adjudicated rendered, there cannot be a “genuine issue as to any material after a conventional trial on the merits before the court. In fact”, TEX.R. CIV. P. 166a(c), and the legal grounds are other cases findings and conclusions are proper, but a party limited to those stated in the motion and response, Stiles v. is not entitled to them. For example, in a case like this one Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993). In in which judgment is rendered as a sanction for discovery other words, if summary judgment is proper, there are no abuse, findings for imposing sanctions may be helpful, and we facts to find, and the legal conclusions have already been have encouraged their use. TransAmerican Nat. Gas Corp. v. stated in the motion and response. The trial court should Powell, 811 S.W.2d 913, 919 n. 9 (Tex.1991); Chrysler Corp. not make, and an appellate court cannot consider, findings v. Blackmon, 841 S.W.2d 844, 852 (Tex.1992). But we do not of fact in connection with a summary judgment. Because require them for two reasons. One is practical: they are often a request for findings *442 and conclusions following unnecessary, and requiring them in every case would unduly summary judgment can have no purpose, should not be filed, burden trial courts. As we explained in Blackmon: and if filed, should be ignored by the trial court, such a request should not extend appellate deadlines. Linwood rejects a [W]e do not wish to unnecessarily broad construction of Rule 41(a)(1) that would cause the burden our trial courts by requiring filing of a request for findings and conclusions to extend the them to make written findings in all time for perfecting appeal in every case adjudicated without cases in which death penalty sanctions a jury. are imposed. First, the benefit of the trial court's explanation in the record of The most restrictive construction of Rule 41(a)(1) would why it believes death penalty sanctions not allow a request for findings and conclusions to extend are justified may be sufficient to guide the time for perfecting appeal unless the request was proper the appellate court. Second, written under Rule 296—that is, “[i]n any case tried in the district or findings are not needed in the vast majority of relatively uncomplicated

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cases or even more complex cases appeal of a judgment rendered as a matter of law, where involving only a few issues pertinent findings and conclusions can have no purpose and should to the propriety of death penalty not be requested, made, or considered on appeal. Examples sanctions. We doubt that findings in are summary judgment, judgment after directed verdict, such cases would meaningfully assist judgment non obstante veredicto, default judgment awarding appellate review. liquidated damages, dismissal for want of prosecution without an evidentiary hearing, dismissal for want of 841 S.W.2d at 852. The other reason findings are not required jurisdiction without an evidentiary hearing, dismissal based whenever they may be useful is that appellate courts are not on the pleadings or special exceptions, and any judgment obliged to give them the same level of deference. A legally rendered without an evidentiary hearing. A timely filed correct judgment based on findings of fact made after a trial request for findings of fact and conclusions of law extends on the merits cannot be set aside on appeal if the findings the time for perfecting appeal when findings and conclusions are supported by sufficient evidence. Harris County Flood are required by Rule 296, or when they are not required by Control Dist. v. Shell Pipe Line Corp., 591 S.W.2d 798, 799 Rule 296 but are not without purpose—that is, they could (Tex.1979). An order imposing discovery sanctions, on the properly be considered by the appellate court. Examples are other hand, may be reversed for an abuse of discretion even judgment after a conventional trial before the court, default if findings and evidence support it. Blackmon, 841 S.W.2d at judgment on a claim for unliquidated damages, judgment 852–853. There is less reason to require findings when they rendered as sanctions, and any judgment based in any part on are not as binding on appeal. an evidentiary hearing.

[4] The purpose of Rule 41, on the other hand, is to In the present case, although sanctions were imposed largely prescribe the time for perfecting appeal. The deadline is 30 on the basis of discovery requests and responses that are a days after the judgment is signed, unless extended by the matter of record and indisputable, there appears to be a factual filing of a motion for new trial or of a request for findings dispute over IKB's explanations for its alleged discovery and conclusions in a case tried without a jury. The first abuse. The trial court's extensive findings themselves indicate exception affords *443 the trial court time to consider and a resolution of disputed factual matters apart from the filings decide the motion. The second exception allows the trial included in the transcript. Applying the rule we have adopted, court time to state the basis for its judgment so that a party we hold that IKB's request for findings and conclusions may determine whether to appeal. Often, perhaps usually, the extended the deadline for perfecting appeal. Thus, the court decision to appeal is not controlled by the court's findings of appeals erred in dismissing the appeal. and conclusions; nevertheless, the purpose of Rule 41(a)(1) is to allow time for the court to make them and the parties The dissent argues that whether a request for findings extends to consider them. The purpose of the second exception is the time for perfecting appeal should depend upon the served not only when findings are required by Rule 296, but standard of review. By this standard, a request for findings whenever they may be useful for appellate review—as when following dismissal for discovery abuse, as in this case, a case has been dismissed for discovery abuse. would not extend the time for appeal even though we have encouraged trial courts to make these findings, and they can Allowing a request for findings and conclusions to extend the be considered on appeal. Moreover, it sometimes happens that deadline for perfecting appeal when a party is not entitled to the standard of review has not been finally determined. Ruiz findings and conclusions under Rule 296 does not impair the v. Conoco, Inc., 868 S.W.2d 752, 757–758 (Tex.1993). Thus purpose of Rule 296. However, not to allow such a request the standard the dissent would apply is less certain than the to extend appellate deadlines does impair the purpose of Rule one we adopt. 41(a)(1) by depriving a party of a statement of the basis of the trial court's ruling to allow the party to determine whether Accordingly, the Court grants IKB's application for writ to appeal. A restrictive construction of Rule 41(a)(1) thus of error and without hearing oral argument reverses the conflicts with the core rationale of Linwood—that the rule judgment of the court of appeals and remands the case to that should be construed to accomplish its purpose. court for a consideration of other issues raised. TEX.R.APP. P. 170. [5] To summarize: A request for findings of fact and conclusions of law does not extend the time for perfecting

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● Permit the parties to determine immediately whether BAKER, Justice, dissenting. findings and conclusions are necessary to the appeal and Today the Court holds that a timely request for findings of therefore necessary to request and extend the time to fact and conclusions of law extends the time for perfecting perfect the appeal; appeal when findings and conclusions are required by Rule 296, or when they are not required by Rule 296 but are not ● Permit the appellate court to determine immediately— without purpose—that is, they could properly be considered without the necessity of reviewing the entire record— by the appellate court. The Court opines that its new rule whether the request for findings and conclusions extends does not conflict with the core rationale of Linwood—which the time to perfect the appeal; and is a functional approach that rejects a broad construction of *444 Rule 41(a)(1) that would allow the filing of a request ● Avoid additional delays in processing and disposing of for findings and conclusions to extend the time for perfecting many appeals. appeal in every case adjudicated without a jury. See Linwood v. NCNB of Texas, 876 S.W.2d 393 (Tex.App.—Dallas), rev'd on other grounds, 885 S.W.2d 102 (Tex.1994). I. REQUESTS FOR FINDINGS OF FACT

I respectfully disagree. The rule the Court adopts continues Rule 41(a)(1) clearly relates to Rule 296. See TEX.R.APP. to unduly complicate, rather than simplify, the issue raised in P. 41(a)(1) and TEX.R. CIV. P. 296. Rule 296 only entitles this case. In my view, the rule the Court adopts: a party to findings of fact and conclusions of law in cases tried in district or county court without a jury. Chavez v. ● Is in fact contrary to Linwood's functional approach to Housing Auth. of El Paso, 897 S.W.2d 523, 525 (Tex.App. construing Rule 41(a)(1); —El Paso 1995, writ denied). A court tries a case when there is an evidentiary hearing upon conflicting evidence. ● Requires the appellate court to review the entire record Linwood, 876 S.W.2d at 395; Chavez, 897 S.W.2d at 525. to accurately determine if the evidentiary hearing did Accordingly, findings of fact are appropriate only when in fact involve the trial court's resolution of discrete the court is deciding fact issues. Chavez, 897 S.W.2d at fact issues outside the scope of the pleadings, motions, 525. Where the court rules without determining discrete fact documents, and arguments of counsel; questions, requests for finding of fact and conclusions of law are neither appropriate nor effective for extending appellate ● Ignores appellate standards of review that establish whether the trial court must resolve discrete fact deadlines. WISD Taxpayers Ass'n v. Waco Indep. Sch. Dist., questions, and the impact these standards of review have 912 S.W.2d 392, 394 (Tex.App.—Waco 1996, no writ); upon a particular appeal; and Chavez, 897 S.W.2d at 525–26. Findings specifically tied to an appropriate legal standard are the only type of findings that ● Adds delay to many appeals—an additional sixty days can be truly beneficial to appellate review. Chrysler Corp. v. —when the judicial system is under fire from the legal Blackmon, 841 S.W.2d 844, 853 (Tex.1992). community and the general public for the inordinate time—and concomitant costs—it takes to process a controversy through the system. II. PRINCIPAL APPELLATE STANDARDS OF REVIEW I believe a more appropriate and more workable rule is that whether a request for findings of fact and conclusions of law extends the time to appeal depends upon the standard of A. ABUSE OF DISCRETION review that applies to the particular appeal. In my view, this Under an abuse of discretion standard, the appellate court rule would: reviews the entire record to determine if the trial court acted ● Support Linwood's functional approach to construing arbitrarily and unreasonably, and thus abused its discretion. Rule 41(a)(1); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986). The reviewing court may not reverse the trial court for an abuse of discretion because it disagrees with the trial court's decision

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so long as that decision is within the trial court's discretionary If the appellant does not challenge the trial court's findings authority. Beaumont Bank v. Buller, 806 S.W.2d 223, 226 of fact, when filed, these facts are binding upon both the (Tex.1991); Downer v. *445 Aquamarine Operators, Inc., party and the appellate court. Wade v. Anderson, 602 S.W.2d 701 S.W.2d 238, 242 (Tex.1985). 347, 349 (Tex.Civ.App.—Beaumont 1980, writ ref'd n.r.e.). Accordingly, it is incumbent for the appellant to attack the Under an abuse of discretion standard of review, the appellate findings by appropriate legal and factual sufficiency points of court does not review factual issues decided by the trial error. Lovejoy v. Lillie, 569 S.W.2d 501, 504 (Tex.Civ.App. court under legal or factual sufficiency standards. Crouch v. —Tyler 1978, writ ref'd n.r.e.). Tenneco, Inc., 853 S.W.2d 643, 649 (Tex.App.—Waco 1993, writ denied). Under an abuse of discretion standard of review, In an appeal of a nonjury trial, findings are specifically and legal and factual sufficiency claims are not independent, meaningfully tied to appropriate standards of appellate review reversible grounds of error, but rather merely factors to and are therefore truly beneficial to appellate review. See consider in assessing whether the trial court abused its Blackmon, 841 S.W.2d at 853. discretion. Buller, 806 S.W.2d at 226. Under an abuse of discretion standard of review, findings of fact and conclusions of law are neither appropriate nor required. Crouch, 853 III. DISMISSAL AS A DISCOVERY SANCTION S.W.2d at 649. The appellate standard of review of a trial court order An abuse of discretion does not exist if the trial court bases its dismissing a case as a discovery sanction is abuse of decision on conflicting evidence and some evidence supports discretion. Blackmon, 841 S.W.2d at 852; TransAmerican the trial court's decision. See Ruiz v. Conoco, Inc., 868 S.W.2d Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 919 n. 9 752, 758 (Tex.1993). An abuse of discretion does not exist (Tex.1991). Findings are neither appropriate nor required if some evidence in the record shows the trial court followed under an abuse of discretion standard. Crouch, 853 S.W.2d guiding rules and statutes. Crouch, 853 S.W.2d at 649. at 649. Findings are not tied to the appellate standard of review and are not necessarily beneficial to appellate review. Accordingly, under the rule I propose, I would hold B. EVIDENTIARY STANDARD OF REVIEW that findings and conclusions did not extend the appellate timetable in this case. I would affirm the court of appeals' Legal and factual sufficiency of the evidence standards judgment dismissing the appeal and deny the writ. of review govern appeals of nonjury trials on the merits. Blackmon, 841 S.W.2d at 852; Hall, Standards of Appellate Review in Civil Appeals, 21 ST. MARY'S L.J. 865, 919–20 IV. CONCLUSION (1990). When a party appeals from a nonjury trial, it must complain of specific findings and conclusions of the trial The Court asserts that the rule it adopts is better than the one court, because a general complaint against the trial court's I propose because it sometimes happens that the appellate judgment does not present a justiciable question. Fiduciary standard of review has not been finally determined. Thus, the Mortgage Co. v. City Nat'l Bank, 762 S.W.2d 196, 204 Court concludes that the standard I would apply is less certain (Tex.App.—Dallas 1988, writ denied). Accordingly, findings than the one it adopts. I beg to differ again. of fact and conclusions of law are mandatory for a party to file to avoid the onerous presumptions that apply in an appeal There is a substantial body of statutory and case law from a nonjury trial. When an appellant does not request or that establishes appellate standards of review. Moreover, file findings and conclusions by the trial court, the appellate the bench and bar are fortunate to have available two court presumes the trial court found all fact questions in excellent *446 law review articles that put this body of law support of its judgment, and the reviewing court must affirm together for ready reference. See generally Hall, Standards that judgment on any legal theory finding support in the of Appellate Review in Civil Appeals, 21 ST. MARY'S L.J. pleadings and evidence. Point Lookout West, Inc. v. Whorton, 865 (1990) and Hall, Revisiting Standards of Review in 742 S.W.2d 277, 278 (Tex.1987). Civil Appeals, 24 ST. MARY'S L.J. 1045 (1993). “The law prescribing the standard of review to a particular ruling is complex but relatively well settled.” Hecht, Forward:

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Revisiting Standards of Review in Civil Appeals, 24 ST. MARY'S L.J. 1041, 1041 (1993). All Citations

Today the Court needlessly establishes a new standard when 938 S.W.2d 440, 40 Tex. Sup. Ct. J. 273 existing standards will better solve the problem. I respectfully dissent.

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 John v. State, 826 S.W.2d 138 (1992)

[2] Eminent Domain KeyCite Yellow Flag - Negative Treatment Strict Compliance with Statutory Declined to Extend by State v. Titan Land Development Inc., Requirements Tex.App.-Hous. (1 Dist.), June 11, 2015 148 Eminent Domain 826 S.W.2d 138 148III Proceedings to Take Property and Assess Supreme Court of Texas. Compensation 148k167 Statutory Provisions and Remedies Paul F. JOHN, Lillie John and John's 148k167(4) Strict Compliance with Statutory Requirements Welding & Construction, Inc., Petitioners, Procedures set forth in condemnation statute v. must be strictly followed and its protections The STATE of Texas, Respondent. liberally construed for benefit of landowner. V.T.C.A., Property Code § 21.049. No. D–1557. | Feb. 26, 1992. | Rehearing Overruled April 22, 1992. 15 Cases that cite this headnote Landowners appeal from judgment of the District Court No. 274, Guadalupe County, Fred Moore, J., entered in eminent [3] Eminent Domain domain proceeding. The San Antonio Court of Appeals Filing Report and Notice affirmed, and landowners applied for writ of error. The 148 Eminent Domain Supreme Court held that landowner's time to object to special 148III Proceedings to Take Property and Assess commissioner's award in condemnation proceeding is tolled Compensation until clerk sends notice to landowner pursuant to statute 148k225 Assessment by Commissioners, requiring clerk to send notice by next working day indicating Appraisers, or Viewers condemnation award. 148k234 Report and Findings or Award 148k234(5) Filing Report and Notice Reversed and remanded. Statute requiring clerk of court to send notification of special commissioner's decision in condemnation proceeding no later than next working day after day of decision is West Headnotes (6) mandatory because it is part of the statutory scheme authorizing eminent domain actions and is designed to protect landowner. V.T.C.A., [1] Eminent Domain Property Code § 21.049. Objections and Exceptions 148 Eminent Domain 12 Cases that cite this headnote 148III Proceedings to Take Property and Assess Compensation 148k225 Assessment by Commissioners, [4] Notice Appraisers, or Viewers Requisites and Sufficiency of Formal 148k235 Objections and Exceptions Notice in General Landowner's time to object to special 277 Notice commissioner's award in condemnation 277k9 Requisites and Sufficiency of Formal proceeding is tolled until clerk sends notice to Notice in General landowner pursuant to statute requiring clerk When statute provides method by which notice to send notice by next working day indicating shall be given in particular instance, notice condemnation award. V.T.C.A., Property Code provision must be followed with reasonable § 21.049. strictness.

5 Cases that cite this headnote 4 Cases that cite this headnote

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 John v. State, 826 S.W.2d 138 (1992)

[5] Action Opinion Change of Character or Form PER CURIAM. Eminent Domain Objections and Exceptions [1] This is a condemnation case. At issue is whether 13 Action landowners are entitled to notice providing an opportunity 13II Nature and Form to timely object after a condemnation award is filed with 13k36 Change of Character or Form the trial court. The court of appeals held that Paul F. 148 Eminent Domain John, Lillie John and John's Welding & Construction Inc. 148III Proceedings to Take Property and Assess (collectively “the Johns”) did not file timely objections to the Compensation condemnation award because the timetable for objecting to 148k225 Assessment by Commissioners, the award starts with the filing of the award, not the sending Appraisers, or Viewers 148k235 Objections and Exceptions or receiving of notice. A majority of this court holds that, in Filing timely objections in condemnation a condemnation proceeding, the parties' time to object to the proceeding invokes jurisdiction of trial court special commissioners' award is tolled until the clerk sends and transforms administrative proceeding into the required notice pursuant to section 21.049 of the Texas pending cause. V.T.C.A., Property Code § Property Code. 21.049. The state commenced an eminent domain action to 4 Cases that cite this headnote condemn the property owned by the Johns. At the special commissioners' hearing, on March 28, 1990, the Johns received an award for the value of their property. On April [6] Eminent Domain 2, 1990, the special commissioners' award was filed with the Objections and Exceptions trial court. On April 3, 1990, the clerk should have sent notice 148 Eminent Domain to the Johns informing them that the commissioners' award 148III Proceedings to Take Property and Assess had been filed with the trial court. See Tex. Prop.Code § Compensation 21.049 (providing that the clerk shall send notice to the parties 148k225 Assessment by Commissioners, in the proceeding, by the next working day, indicating that the Appraisers, or Viewers 148k235 Objections and Exceptions condemnation award had been filed with the trial court). On If objections are not timely filed in condemnation April 25, 1990, the clerk finally sent the required notice to the proceeding, trial court can only perform its Johns. Two days later, on April 27, 1990, the Johns filed their ministerial function and render judgment based objections to the award and demanded a trial to determine the on special commissioner's award. V.T.C.A., value of the property. Property Code § 21.049. The trial court held that it did not have jurisdiction to consider 11 Cases that cite this headnote the merits of the case without timely objections and could only perform its ministerial function of entering judgment based upon the commissioners' award. See Tex. Prop.Code § 21.018(a) (providing that objections to the condemnation Attorneys and Law Firms award must be filed on or before the Monday next following the twentieth day after the day the commissioners file their *139 Bennie Bock, II, New Braunfels, Laura Cavaretta, and findings with the court). The court of appeals affirmed the Paul M. Green, San Antonio, for petitioners. judgment of the trial court on the basis that the Johns did not file timely objections. To support that result, the court of George R. Jennings, and Mark Heidenheimer, Austin, for appeals compared section 21.049 of the Texas Property Code respondent. to rule 239a of the Texas Rules of Civil Procedure which governs default judgments. 1 The notice requirement of rule 239a has been considered directory, rather than mandatory. See Petro–Chemical Transport, Inc. v. Carroll, 514 S.W.2d

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240, 244–45 (Tex.1974) (the clerk's failure to send required special commissioners] is filed, the notice does not affect the *140 finality of the judgment clerk shall send notice of the decision but such a failure may be a predicate for bill of review); by certified or registered United States see also Bloom v. Bloom, 767 S.W.2d 463, 468 (Tex.App. mail, return receipt requested, to the —San Antonio 1989, writ denied) (the clerk's failure to parties in the proceeding, or to their provide the required notice, pursuant to rule 239a, does attorneys of record, at their addresses not constitute reversible error). Thus, reasoning that section of record. 21.049 is likewise directory, the court of appeals held that the clerk's failure to comply with the notice provision does not Tex.Prop.Code § 21.049. In contrast to rule 239a, this section toll the timetable for objecting to the commissioners' award. must be construed as mandatory because it is part of the statutory scheme authorizing eminent domain actions and it 1 is designed to protect the landowner. Moreover, since the Rule 239a of the Texas Rules of Civil Procedure language of the statute is clear and unambiguous, it should be provides, in part, that “[i]mediately upon the signing of enforced as written, giving its terms their usual and ordinary the judgment, the clerk shall mail written notice thereof to the party against whom the judgment was rendered....” meaning, and without resorting to the rules of construction. See Balios v. Texas Dep't of Pub. Safety, 733 S.W.2d 308, [2] Contrary to the court of appeals' analysis, the notice 310 (Tex.App.—Amarillo 1987, writ ref'd). 3 Therefore, in requirements of section 21.049 of the Texas Property Code condemnation cases, the clerk must comply with the notice and rule 239a of the Texas Rules of Civil Procedure are provisions. not analogous. Default judgments are distinguishable for two reasons. First, rule 239a specifically states that “failure 3 The state argues that the notice provision of section to comply with the provisions of the rule shall not affect the finality of the judgment.” Tex.R.Civ.P. 239a. Thus, 21.049 is directory rather than mandatory because unlike section 21.049 of the Texas Property Code, the notice Senator McFarland stated, during the floor debate on the revised property code, that this bill is “a nonsubstantive requirement is directory by the express language of rule codification.” 2nd and 3rd Reading of Senate Bill 49 239a. 2 Second, in a condemnation action, the landowner on the Senate Floor, p. 2, 1. 23–24. In 1983, during is given a single opportunity to recover damages for the the first called session, the Legislature amended art. taking of his property by the state for the public benefit. 3265 § 5 to require notice to the parties, by the next Coastal Indust. Water Auth. v. Celanese Corp. of Am., 592 working day, indicating that the condemnation award S.W.2d 597, 599 (Tex.1979). As a result, the procedures set had been filed with the trial court. Act of June 19, forth in the condemnation statute must be strictly followed 1983, H.B. No. 1118, § 5, 68th Legislature, 1st C.S., and its protections liberally construed for the benefit of the ch. 838, 1983 Tex.Gen.Laws 4766. During the second landowner. See Rotello v. Brazos County Water Control & call of the same session, the legislature incorporated Improvement Dist., 574 S.W.2d 208, 212 (Tex.Civ.App.— this change into the Property Code. Act of 1984, S.B. 49, § 1(d), 68th Legislature, 2nd C.S., ch. 18, 1984 Houston [1st Dist.] 1978, no writ). See also Coastal Indust. Tex.Gen.Laws 95 (codified as Tex.Prop.Code § 21.049.) Water Auth., 592 S.W.2d at 599; Walling v. State, 394 S.W.2d Thus, the substantive change occurred prior to the 1984 38, 40 (Tex.Civ.App.—Waco 1965, writ ref'd n.r.e.). codification. Furthermore, the express language of the statute 2 When a defaulting party does not receive any actual or states that the clerk “shall” send notice to the official notice, rule 306a(4) of the Texas Rules of Civil parties in the condemnation proceeding. Shall “is an Procedure provides a limited extension of time before imperative term, by ordinary meaning, and requires the judgment becomes final and the trial court loses its the performance of the act to be performed. Thus, plenary power. After that limited extension of time has it should be treated as a mandatory term, unless it lapsed, the clerk's failure to send notice will not affect is apparent that the legislature intended otherwise.” the finality of the judgment. Tex.R.Civ.P. 239a. Balios v. Texas Dep't of Pub. Safety, 733 S.W.2d 308, 310 (Tex.App.—Amarillo 1987, writ ref'd) (citations [3] One such procedure is section 21.049 of the Texas omitted). Property Code, which mandates that: [4] [5] [6] In light of section 21.049 of the Texas Property [N]ot later than the next working day Code, the court of appeals *141 incorrectly applied Dickey after the day the decision [by the v. City of Houston, 501 S.W.2d 293 (Tex.1973) which held

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 John v. State, 826 S.W.2d 138 (1992)

Dist.] 1978, no writ). By sending notice to the Johns after that a landowner who received notice of the condemnation their time to object had lapsed, the clerk failed to follow was charged with the duty to “take cognizance” of subsequent the notice requirement with reasonable strictness. acts of the commissioners including making an award, returning it to the trial court, and having the trial court 5 Filing timely objections invokes the jurisdiction of the enter the judgment unless timely objections were filed. Id. trial court and transforms the administrative proceeding at 294. After Dickey, the legislature passed this mandatory into a pending cause. Pearson v. State, 159 Tex. 66, provision, Tex.Prop.Code § 21.049, which supplanted the 315 S.W.2d 935, 937 (1958); see Seiler v. Intrastate holding in Dickey and required the clerk to send notice to Gathering Corp., 730 S.W.2d 133, 137 (Tex.App.—San Antonio 1987, no writ). If objections are not filed timely, the landowner, by the next working day, confirming that the trial court can only perform its ministerial function the condemnation award had been filed with the trial court. and render judgment based upon the commissioner's Thus, notice of the condemnation hearing is not sufficient award. See Pearson, 315 S.W.2d at 938. However, the notice that the landowners' time to object to the condemnation clerk's failure to send notice tolls the landowner's time to award has begun to run. In the case at bar, the clerk failed object. Therefore, in the case at bar, the trial court had to notify the Johns that the special commissioners' award had jurisdiction to consider the merits of the case because the been filed with the court until after the deadline to object Johns filed timely objections. Cf. Packer v. Fifth Court had passed. 4 As a result, the Johns' time to object to the of Appeals, 764 S.W.2d 775 (Tex.1989). special commissioners' award is tolled until the clerk sends Accordingly, pursuant to Tex.R.App.P. 170, without hearing the required notice pursuant to section 21.049 of the Texas oral argument, a majority of this court grants the Johns' Property Code. 5 application for writ of error, reverses the judgment of the court of appeals, and remands the cause to the trial court for further 4 proceedings consistent with this opinion. When a statute provides the method by which notice shall be given in a particular instance, the notice provision must be followed with reasonable strictness. See Rotello All Citations v. Brazos County Water Control & Improvement Dist., 574 S.W.2d 208, 212 (Tex.Civ.App.—Houston [1st 826 S.W.2d 138

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013) 2013 WL 6672494

148k235 Objections and exceptions Electric company's time to file objections 2013 WL 6672494 to the special commissioners' damages award Only the Westlaw citation is currently available. to landowner in condemnation action was SEE TX R RAP RULE 47.2 FOR tolled until the trial court clerk mailed the DESIGNATION AND SIGNING OF OPINIONS. notice of decision to company, as required by condemnation statute, and because the trial court MEMORANDUM OPINION clerk never mailed the notice as required by Court of Appeals of Texas, statute, company's time to file objections to San Antonio. the commissioners' award was tolled. V.T.C.A., Property Code § 21.049. ONCOR ELECTRIC DELIVERY COMPANY LLC, Appellant Cases that cite this headnote v. James Milton James Milton SCHUNKE, Appellee. [2] Eminent Domain Filing report and notice No. 04–13–00067–CV. | Dec. 18, 2013. 148 Eminent Domain Synopsis 148III Proceedings to Take Property and Assess Background: Electric company filed a condemnation Compensation 148k225 Assessment by Commissioners, petition. Special commissioners awarded landowner Appraisers, or Viewers $367,000.00 in damages for the condemnation of his 148k234 Report and Findings or Award land. Landowner filed a motion seeking judgment on the 148k234(5) Filing report and notice commissioners' award. The 35th Judicial District Court, Where attorney for electric company gave the Mills County, Stephen Ellis, J., concluded that company's notice of special commissioners' decision to objections to commissioners' award were untimely filed, the trial court clerk, who filed the notice and granted landowner's motion, and rendered judgment on the handed company's attorney a file-stamped copy commissioners' award. Company appealed. of the notice, the act of handing file-stamped copy of the notice of decision to one of company's attorneys did not satisfy the clerk's [Holding:] The Court of Appeals, Karen Angelini, J., mandatory duty to mail the notice to the parties or held that company's time to file objections to the special their attorneys pursuant to condemnation statute. commissioners' damages award was tolled until the trial court V.T.C.A., Property Code § 21.049. clerk mailed the notice of decision to company, as required by condemnation statute. Cases that cite this headnote

Reversed and remanded. From the 35th Judicial District Court, Mills County, Texas, Trial Court No. 11–04–6278, Stephen Ellis, Judge. West Headnotes (2) Attorneys and Law Firms

Joann N. Wilkins, Lance Cooper Travis, Burford & Ryburn, [1] Eminent Domain Dallas, TX, for Appellant. Objections and exceptions 148 Eminent Domain Luke Ellis, Jons, Marrs, Ellis, and Hodge, LLP, Austin, TX, 148III Proceedings to Take Property and Assess for Appellee. Compensation 148k225 Assessment by Commissioners, Sitting: KAREN ANGELINI, Justice, MARIALYN Appraisers, or Viewers BARNARD, Justice, REBECA C. MARTINEZ, Justice.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013) 2013 WL 6672494

decision to Oncor's attorneys of record. Oncor filed objections to the commissioners' award on October 19, 2011. MEMORANDUM OPINION Thereafter, Schunke filed a motion seeking judgment on Opinion by KAREN ANGELINI, Justice. the commissioners' award. In the motion, Schunke argued the trial court was required to render judgment on the *1 Oncor Electric Company LLC appeals from a commissioners' award because Oncor failed to file its judgment rendered on a special commissioners' award in objections in a timely manner. According to Schunke, Oncor's a condemnation case. We conclude the trial court erred objections were due on October 17, 2011, which was the first in rendering judgment on the commissioners' award. We Monday following the twentieth day after the commissioners' therefore reverse and remand for further proceedings. award was filed with the trial court clerk.

The trial court held a hearing on Schunke's motion. At the BACKGROUND hearing, a trial court clerk testified that the notice of the commissioners' decision was not sent to Oncor in the manner A condemnation action begins as an administrative specified by the property code. Nevertheless, Schunke argued proceeding and, if necessary, may be converted to a that the clerk's failure to send the notice of decision to judicial proceeding. City of Tyler v. Beck, 196 S.W.3d Oncor in the manner specified by the property code did not 784, 786 (Tex.2006). To begin a condemnation action, a toll Oncor's time for filing objections because the relevant condemning entity files a petition in the appropriate trial property code provisions were designed to protect landowners court. Id.;State v. Garland, 963 S.W.2d 95, 97 (Tex.App.- rather than condemning entities. Schunke further argued that Austin 1998, pet. denied). The trial court then appoints Oncor had actual notice of the filing of the notice of decision. special commissioners, who conduct a hearing and determine In response, Oncor argued its objections were not untimely just compensation. Beck, 196 S.W.3d at 786; Garland, 963 because the property code required the clerk to mail the notice S.W.2d at 97.Any party to a condemnation action may object of decision to the parties or their attorneys of record and the to the commissioners' award by filing written objections with clerk failed to do so. Furthermore, Oncor claimed that it relied the court. Beck, 196 S.W.3d at 786; Garland, 963 S.W.2d on the law stating that the time for filing objections was tolled at 97.If any party timely files objections, the commissioners' until the clerk mailed the notice of decision to the parties or award is vacated and the administrative proceeding becomes their attorneys of record. The trial court concluded Oncor's a judicial proceeding.Beck, 196 S.W.3d at 786; Garland, objections were untimely filed, granted Schunke's motion, 963 S.W.2d at 97.However, if no objections are filed, or if and rendered judgment on the commissioners' award. Oncor objections are untimely filed, the trial court does not acquire appealed. jurisdiction beyond its ministerial duty to render judgment on the commissioners' award. Garland, 963 S.W.2d at 97 (citing Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 938 (1958)). DISCUSSION In this case, Oncor filed a condemnation petition in the district *2 On appeal, Oncor argues its objections were timely filed court in Mills County, Texas. In its petition, Oncor sought to and therefore the trial court erred in rendering judgment on the condemn land owned by James Milton Schunke. The district commissioners' award. Two provisions of the Texas property court appointed special commissioners, who heard the case code are central to the issue presented in this appeal. The first and decided to award Schunke $367,000.00 in damages for provision, section 21.049, states: the condemnation of his land. Oncor filed the commissioners' award and a notice of the commissioners' decision with The judge of a court hearing a the trial court clerk on September 26, 2011. The notice of proceeding under this chapter shall decision instructed the trial court clerk to mail, by certified or inform the clerk of the court as to a registered mail, a copy of the notice to Schunke's and Oncor's decision by the special commissioners attorneys of record. On September 28, 2011, the trial court on the day the decision is filed or on clerk mailed a copy of the notice of decision to Schunke's the next working day after the day the attorneys of record, but she did not mail a copy of the notice of decision is filed. Not later than the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013) 2013 WL 6672494

next working day after the day the no writ), disapproved of on other grounds byState v. Bristol decision is filed, the clerk shall send Hotel Asset Co., 65 S.W.3d 638, 642 (Tex.2001)). notice of the decision by certified or registered United States mail, return *3 [1] Here, it is undisputed that the trial court clerk never receipt requested, to the parties in the sent notice to Oncor as required by section 21.049. A deputy proceeding, or to their attorneys of clerk testified that one of Oncor's attorneys gave her the notice record, at their addresses of record. of decision for filing, she filed the notice of decision, and handed the attorney a file-stamped copy of the notice. The TEX. PROP.CODE ANN. § 21.049 (West 2000). The second clerk also testified that she mailed a copy of the notice of provision, section 21.018, states: decision to Schunke's attorney, but she never mailed a copy to Oncor's attorney because it was her understanding that she (a) A party to a condemnation proceeding may object to the did not need to mail the notice to the condemning entity. The findings of the special commissioners by filing a written clerk further testified that no one else in her office mailed a statement of the objections and their grounds with the court copy of the notice to Oncor because it would have been noted that has jurisdiction of the proceeding. The statement must in the file. be filed on or before the first Monday following the 20th day after the day the commissioners file their findings with Applying John to these facts, we conclude Oncor's time to the court. file objections to the commissioners' award was tolled until (b) If a party files an objection to the findings of the special the trial court clerk mailed the notice of decision as required commissioners, the court shall cite the adverse party and by section 21.049. See John, 826 S.W.2d at 139 (“A majority try the case in the same manner as other civil causes. of this court holds that, in a condemnation proceeding, the parties' time to object to the special commissioners' award TEX. PROP.CODE ANN. § 21.018 (West 2003). is tolled until the clerk sends the required notice pursuant to section 21.049 of the Texas Property Code.”); Garland, These provisions were construed by the Texas Supreme Court 963 S.W.2d at 101 (holding that the timetable for filing in John v. State, 826 S.W.2d 138 (Tex.1992).Section 21.049 objections begins when the commissioners' decision is filed requires the trial court clerk to mail the notice of decision with the trial court, subject to tolling if proper notice is not to the parties not later than the next working day after the sent). Because the trial court clerk never mailed the notice as day the decision is filed. TEX. PROP.CODE ANN. § 21.049. required under section 21.049, Oncor's time to file objections In John, the trial court clerk failed to mail the notice of to the commissioners' award was tolled. the commissioners' decision to the landowners in the time period specified in the statute. 826 S.W.2d at 139.Instead, [2] Despite the rule articulated in John, Schunke claims the clerk mailed the notice twenty-two days late, which that Oncor's objections were untimely filed. Schunke argues was after the time for filing objections had passed under that John does not apply to this case because Oncor had section 21.018(a).Id. Two days after the clerk mailed the actual notice of the filing of the notice of the commissioners' notice of decision, the landowners filed their objections. decision. Specifically, Oncor's lawyer gave the notice of Id. The Texas Supreme Court held that the landowners' decision to the trial court clerk, who filed the notice objections were timely filed because the time to object to the and handed Oncor's attorney a file-stamped copy of the commissioners' award was tolled until the clerk mailed the notice. 1 We disagree with Schunke's assertion that the act of notice of decision as required under section 21.049. Id. The handing a file-stamped copy of the notice of decision to one Texas Supreme Court construed section 21.049 as mandatory, of Oncor's attorneys satisfied the clerk's mandatory duty to concluding that “in condemnation cases, the clerk must mail the notice to the parties or their attorneys under section comply with the notice provisions.”Id. at 140. In reaching its 21.049. Section 21.049, which makes no mention of actual holding, the Texas Supreme Court noted that when a statute notice, specifies the manner in which notice is to be provided, provides the method by which notice shall be given in a stating “the clerk shall send notice of the decision by certified particular instance, the notice provision must be followed or registered United States mail, return receipt requested, to with reasonable strictness. Id. at 141 n. 4 (citing Rotello v. the parties in the proceeding, or to their attorneys of record, Brazos Cnty. Water Control and Improvement Dist. No. 1, at their addresses of record.”SeeTEX. PROP.CODE ANN. 574 S.W.2d 208, 212 (Tex.App.-Houston [1st Dist.] 1978, § 21.049. As the Texas Supreme Court stated in John, the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013) 2013 WL 6672494

equitable tolling and because Oncor judicially admitted requirements set out in section 21.049 must be followed with that the commissioners' award was filed with the clerk on reasonable strictness. John, 826 S.W.2d at 141 n. 4. September 26, 2011. We find these arguments unconvincing. 1 First, under the rule articulated in John, Oncor was Apparently, the practice of a party filing the notice not required to satisfy the requirements for equitable of decision on behalf of the commissioners is not tolling. Second, any admission concerning the date the unusual. A similar practice was described in State v. commissioners' award was filed does not change the fact that Garland, 963 S.W.3d 95, 99 (Tex.App.-Austin 1998, no pet.)(“We are informed ... that a representative of the time to file objections was tolled until the clerk mailed the condemnor typically offers to carry out the actual notice to the parties or their attorneys as required by section filing of the document, and that such offer is usually 21.049. accepted by the commissioners. We see no reason why the commissioners may not authorize another person, In sum, the clerk's act of handing a file-stamped copy of the including a party to the proceeding, to fulfil[l] this notice of decision to one of Oncor's attorneys did not satisfy responsibility.”). the clerk's duty to mail the notice of decision as required by Schunke next argues this case warrants a departure from section 21.049. Moreover, Oncor was entitled to rely on the the rule articulated in John because the clerk failed to rule articulated in John, which provides that the time for filing send notice to the condemning entity as opposed to the objections to the commissioners' award is tolled until the clerk landowner. Schunke points out that John was based in mails notice to the parties or their attorneys as required by part on the principle that condemnation statutes are to be section 21.049. See 826 S.W.2d at 139. liberally construed for the benefit of the landowner. Id. at 140.However, John was also based on the principle that statutes that are clear and unambiguous must be enforced CONCLUSION as written. Id. (“Moreover, since the language of the statute is clear and unambiguous, it should be enforced as written, The trial court erred in concluding Oncor's objections giving its terms their usual and ordinary meaning, and without were untimely filed and in rendering judgment on the resorting to the rules of construction.”). Notably, section commissioners' award. Because Oncor's objections were 21.049 does not direct the clerk to mail the notice to the timely filed, the administrative condemnation proceeding was landowner only. Rather, section 21.049 expressly requires the converted to a judicial condemnation proceeding. Therefore, clerk to mail the notice “to the parties in the proceeding, or the trial court's judgment is REVERSED, and this case is to their attorneys of record.”SeeTEX. PROP.CODE ANN. § REMANDED to the trial court for further proceedings. 21.049 (emphasis added).

*4 Schunke further argues that Oncor's objections were All Citations untimely because Oncor failed to satisfy the requisites for Not Reported in S.W.3d, 2013 WL 6672494

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

KeyCite Yellow Flag - Negative Treatment Reversed and remanded. Distinguished by In re Bliss & Glennon, Inc., Tex.App.-Hous. (1 Dist.), January 7, 2014 Willett, J., concurred in part and filed opinion. 341 S.W.3d 919 Supreme Court of Texas. West Headnotes (5) Larry ROCCAFORTE, Petitioner, v. Jefferson COUNTY, Respondent. [1] Appeal and Error Judgment No. 09–0326. | Argued Oct. 14, 30 Appeal and Error 2010. | Decided April 29, 2011. 30V Presentation and Reservation in Lower Court of Grounds of Review Synopsis 30V(B) Objections and Motions, and Rulings Background: Former chief deputy constable brought § Thereon 1983 wrongful termination action against county, county 30k223 Judgment constable, and county employees. After jury returned a Even if court erred in rendering final judgment verdict in favor of former chief with respect to the claims after it had issued a stay in proceedings against constable, the 136th District Court, Jefferson County, pending an interlocutory appeal by plaintiff, Milton G. Shuffield, J., granted county's plea to jurisdiction, former chief deputy constable waived such and former chief brought interlocutory appeal. While error in wrongful termination action brought by interlocutory appeal was pending, the District Court rendered former chief deputy constable against county final judgment against constable. Constable appealed, and and other constable; trial court's final judgment former chief cross-appealed. The Beaumont Court of Appeals was voidable, rather than void, and former chief affirmed in part, reversed in part, and rendered judgment deputy constable failed to object to entry of final that former chief take nothing. In the interlocutory appeal, judgment. the Beaumont Court of Appeals, 281 S.W.3d 230, modified the dismissal order to reflect that the dismissal was without 4 Cases that cite this headnote prejudice and affirmed the order as modified. Former chief petitioned for review. [2] Appeal and Error Nature and grounds of right 30 Appeal and Error Holdings: The Supreme Court, Jefferson, C.J., held that: 30IV Right of Review 30IV(A) Persons Entitled [1] even if court erred in rendering final judgment after it had 30k136 Nature and grounds of right issued a stay in proceedings, former chief waived such error; The right of appeal should not be lost due to procedural technicalities. [2] Court of Appeals would treat interlocutory appeal that was 1 Cases that cite this headnote pending when trial court issued a final judgment as an appeal from the final judgment; [3] Appeal and Error [3] provision in statute requiring notice of suit against county Interlocutory Proceedings Brought Up in via mail was not a jurisdictional requirement; and General 30 Appeal and Error [4] provision in statute requiring notice of suit against county 30XVI Review via mail was satisfied by hand-delivery of notice. 30XVI(B) Interlocutory, Collateral, and Supplementary Proceedings and Questions

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

30k869 On Appeal from Final Judgment against county and other constable. V.T.C.A., 30k870 Interlocutory Proceedings Brought Up in Local Government Code § 89.0041. General 30k870(1) In general 5 Cases that cite this headnote Court of Appeals would treat interlocutory appeal that was pending when trial court issued a final judgment as an appeal from the final judgment; claims against defendant Attorneys and Law Firms that were subject matter of interlocutory appeal were not severed prior to entry of final *920 Laurence W. Watts, Watts & Associates, P.C., judgment, defendant remained a party to the Missouri City, TX, Brandon David Mosley, Cowan & underlying proceeding, and final judgment Lemmon, LLP, Houston, TX, for Larry Roccaforte. implicitly modified the interlocutory order, which merged with it. Rules App.Proc., Rule Thomas F. Rugg, District Attorney's Office, First Assistant 27.3. —Civil Div., Steven L. Wiggins, Jefferson County District Attorney Office, Thomas E. Maness, Criminal District 16 Cases that cite this headnote Attorney, Beaumont, TX, for Jefferson County.

Todd K. Sellars, Dallas County Assistant Attorney, Dallas, [4] Counties TX, for Amicus Curiae Dallas County, Texas. Notice, Demand, or Presentation of Claim 104 Counties Opinion 104XII Actions Chief Justice JEFFERSON delivered the opinion of the Court, 104k211 Conditions Precedent 104k213.5 Notice, Demand, or Presentation of joined by Justice HECHT, Justice WAINWRIGHT, Justice Claim MEDINA, Justice GREEN, Justice JOHNSON, Justice 104k213.5(1) In general GUZMAN, and Justice LEHRMANN, and joined by Justice Provision in statute governing local government WILLETT as to parts I through III. providing that, upon motion by the defendant, an The Local Government Code requires a person suing a county action against a county or county official must to give the county judge and the county or district attorney be dismissed if plaintiff failed to provide written notice of the claim. TEX. LOC. GOV'T CODEE § 89.0041. notice via mail to the county judge or district The plaintiff provided that notice here, but did so by personal attorney, was not a jurisdictional requirement. service of process, rather than registered or certified mail as V.T.C.A., Local Government Code § 89.0041. the statute contemplates. We conclude that when the requisite 4 Cases that cite this headnote county officials receive timely notice enabling them to answer and defend the claim, the case should not be dismissed. Because the court of appeals concluded otherwise, we reverse [5] Counties its judgment and remand the case to the trial court for further Service or presentation; timeliness proceedings. 104 Counties 104XII Actions 104k211 Conditions Precedent I. Background 104k213.5 Notice, Demand, or Presentation of Former Chief Deputy Constable Larry Roccaforte sued Claim Jefferson County and Constable Jeff Greenway, alleging that 104k213.5(2) Service or presentation; timeliness his wrongful termination deprived him of rights guaranteed Statute requiring that a plaintiff filing suit against by the Texas Constitution. Roccaforte personally served a county or county official must provide notice of County Judge Carl Griffith with the suit, and fifteen days suit via mail to county judge or district attorney later, the County (represented by the district attorney) and was satisfied by hand-delivery of notice, rather Constable Greenway answered, denying liability. The County than delivery by mail, in wrongful termination propounded written discovery requests, deposed Roccaforte, action brought by former chief deputy constable

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

and presented County officials for depositions. The County also filed a plea to the jurisdiction, asserting that Roccaforte Roccaforte notes that immediately did not give requisite notice of the suit. See TEX. LOC. after the dismissal order, the trial of the GOV'T CODEE § 89.0041. Roccaforte disagreed, arguing case proceeded to judgment without that the statute applied only to contract claims. Alternatively, the County as a party. No one disputes he argued that 42 U.S.C. § 1983 preempted the notice that all the claims against all other requirements and that he substantially complied with them in parties have been resolved. The order any event. of dismissal is therefore appealable whether or not the statute at issue is Although the trial court indicated that it would sustain the jurisdictional. County's plea and sever those claims from the underlying 281 S.W.3d 230, 231 n. 1. The court ultimately concluded case, it did not immediately sign an order doing so. In the that Roccaforte's failure to notify the County of the suit by meantime, Roccaforte tried his claims against Greenway. A registered or certified mail mandated dismissal of his suit jury returned a verdict in Roccaforte's favor. Afterwards, the against the County, but not because the trial court lacked trial court signed an order granting the County's jurisdictional jurisdiction. Id. at 236–37. Accordingly, the court modified plea. The order did not sever the claims from the underlying the dismissal order to reflect that dismissal was without case. Roccaforte then pursued this interlocutory appeal. His prejudice and affirmed the order as modified. Id. notice of appeal stated that “[p]ursuant to Civ. P. Rem.Code § 51.014(b), all proceedings are *921 stayed in the trial court Roccaforte petitioned this Court for review, which we pending resolution of the appeal.” But the proceedings were not stayed. granted. 2 53 Tex.Sup.Ct.J. 1061 (Aug. 27, 2010).

In the underlying case, Greenway moved for judgment 2 Dallas County submitted an amicus curiae brief in notwithstanding the verdict, which the trial court granted support of Jefferson County. as to Roccaforte's property interest and First Amendment retaliation claims but denied as to Roccaforte's claimed II. Did the trial court's final judgment moot this violation of his liberty interest. Roccaforte moved for interlocutory appeal? entry of judgment. Notwithstanding the statutory stay Before turning to the merits, we must decide a procedural referenced in Roccaforte's notice of appeal, the trial court matter: What happens when a party perfects an appeal of rendered judgment for Roccaforte and awarded damages, an interlocutory judgment that has not been severed from attorney's fees, and costs. The judgment was titled “FINAL the underlying action, and that action proceeds to trial and JUDGMENT”; it “denie[d] all relief no [sic] granted in this a final judgment? The trial court did not sever Roccaforte's judgment”; and it stated “[t]his is a FINAL JUDGMENT.” claims against the County 3 and denied “all relief not granted” The County was included in the case caption. No one objected in its final judgment. Ordinarily, under these circumstances, to the continuation of trial court proceedings despite the Roccaforte would have to complain on appeal that the statutory stay. trial court erroneously dismissed those claims. Roccaforte, however, did not complain about the County's dismissal in Greenway appealed, and Roccaforte cross-appealed, raising his appeal from the final judgment. His separate interlocutory as his only issues complaints regarding the trial court's appeal, then, rests on a precipice of mootness. JNOV on his claims against Greenway. The court of appeals affirmed in part and reversed in part, rendering judgment 3 “As a rule, the severance of an interlocutory judgment that Roccaforte take nothing. Greenway v. Roccaforte, 2009 into a separate cause makes it final.” Diversified Fin. WL 3460683, at *6, 2009 Tex.App. LEXIS 8290, at *15 Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C., (Tex.App.-Beaumont 2009, pet. denied). 1 63 S.W.3d 795, 795 (Tex.2001) (per curiam).

1 Today, we deny that petition for review. *922 A. Roccaforte waived any complaint about the trial court's actions during the statutory stay. In Roccaforte's separate interlocutory appeal, the court of Although Roccaforte's interlocutory appeal was supposed to appeals made the following notation: stay all proceedings in the trial court pending resolution of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

the appeal, 4 Roccaforte did not object to the trial court's Escalante, 251 S.W.3d at 725. In Henry, the court held rendition of judgment while the stay was in effect. To the that a party's failure to object to the trial court's action in contrary, he affirmatively moved for entry of judgment. violation of the stay waived any error resulting from that Because a final judgment frequently moots an interlocutory action. Henry, 2005 WL 1320121, at *1–2, 2005 Tex.App. LEXIS 4310, at *4 (holding that trial court's grant of summary appeal, 5 we must decide whether the trial court's failure to judgment mooted interlocutory appeal challenging denial of observe the stay made the final judgment void or merely special appearance). We find particularly instructive a case voidable. If the final judgment is void, it would have no involving a trial court's rendition of final judgment while impact on this interlocutory appeal. Lindsay v. Jaffray, 55 an interlocutory appeal of a class certification order was Tex. 626 (Tex.1881) (“A void judgment is in legal effect pending: no judgment.”) (quoting FREEMAN ON JUDGMENTS, § 117). 6 If voidable, then we must decide whether it moots this [I]f a trial court proceeds to trial proceeding. See Travelers Ins. Co. v. Joachim, 315 S.W.3d during the interlocutory appeal, the 860, 863 (Tex.2010) (observing that voidable orders must be class action plaintiff must inform corrected by direct attack and, unless successfully attacked, the court of section 51.014(b) and become final). We conclude it is voidable. request that the stay be enforced. If a court proceeds to trial over the 4 TEX. CIV. PRAC. & REM.CODE § 51.014(b); see objection of a class action plaintiff, the also TEX.R.APP. P. 29.5 (providing that “[w]hile an class action plaintiff could request a appeal from an interlocutory order is pending, the mandamus and this court would grant trial court retains jurisdiction of the case and unless it. However, if the class action plaintiff prohibited by statute may make further orders, including fails to inform the trial court of section one dissolving the order complained of on appeal”) 51.014(b), and allows the court to (emphasis added). proceed to trial, as happened here, the 5 *923 plaintiff waives the right to See, e.g., Hernandez v. Ebrom, 289 S.W.3d 316, 319 (Tex.2009) (“Appeals of some interlocutory orders object or request any relief on appeal. become moot because the orders have been rendered See TEX.R.APP. P. 33.1(a). We see moot by subsequent orders.”). this as no different from any other trial court error that is not preserved—it is 6 See also Travelers Ins. Co. v. Joachim, 315 S.W.3d waived. 860, 863 (Tex.2010) (noting that “[a] judgment is void ... when it is apparent that the court rendering Siebenmorgen v. Hertz Corp., No. 14–97–01012–CV, 1999 judgment had no jurisdiction of the parties or property, WL 21299, at *3, 1999 Tex.App. LEXIS 311, at *10– no jurisdiction of the subject matter, no jurisdiction to 11 (Tex.App.-Houston [14th Dist.] Jan. 21, 1999, no pet.) enter the particular judgment, or no capacity to act”) (dismissing as moot interlocutory appeal of order denying (quoting Browning v. Prostok, 165 S.W.3d 336, 346 class certification). (Tex.2005)). Two of our courts of appeals have held that the failure to A third court of appeals has implicitly concluded that parties object when a trial court proceeds despite the automatic stay can waive the right to insist on a section 51.014(b) stay. waives any error the trial court may have committed by See Lincoln Property Co. v. Kondos, 110 S.W.3d 712, 715 failing to impose it. See Escalante v. Rowan, 251 S.W.3d 720, (Tex.App.-Dallas 2003, no pet.). In that case, the court 724–25 (Tex.App.-Houston [14th Dist.] 2008), rev'd on other observed that the trial court's grant of summary judgment grounds, 332 S.W.3d 365 (Tex.2011) (per curiam); Henry while an interlocutory appeal was pending violated the v. Flintrock Feeders, Ltd., No. 07–04–0224–CV, 2005 WL statutory stay. Noting that “neither party requested a stay 1320121, at *1, 2005 Tex.App. LEXIS 4310, at *1 (Tex.App.- from this Court” and “both parties sought to commence the Amarillo June 1, 2005, no pet.) (mem.op.). In Escalante, ‘trial’ below by filing and/or arguing motions for summary the court of appeals held that a party's failure to object to judgment while this appeal was pending,” the court of appeals a trial court's ruling on summary judgment motions during did not conclude that the trial court's summary judgment the statutory stay “failed to preserve error as to any objection was void. Id. at 715. Instead, the appellate court held that that the summary judgment is voidable based on the stay.” the summary judgment mooted the interlocutory appeal. Id.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

at 715–16 (noting that the interlocutory class certification court signed a final judgment disposing of all parties and all order merged into the final judgment). The court concluded: claims and that Roccaforte did not present in his appeal from “By rendering a final judgment during this appeal, the trial that judgment the arguments he advances in this interlocutory court also rendered itself powerless to reconsider its class appeal. certification ruling were we to conclude here the ruling was entered in error.” Id. at 715. B. The trial court's final judgment implicitly modified its We agree with those decisions that have held that a party interlocutory order, and we treat this appeal as relating may waive complaints about a trial court's actions in to that final judgment. violation of the stay imposed by section 51.014(b). That [2] We have repeatedly held that the right of appeal should stay differs from a situation in which the relevant statute not be lost due to procedural technicalities. 8 Roccaforte vests “exclusive jurisdiction” in a particular forum. See, e.g., timely perfected appeals from both the interlocutory order Kalb v. Feuerstein, 308 U.S. 433, 439, 60 S.Ct. 343, 84 and the final judgment, and this is not a situation in which L.Ed. 370 (1940) (noting that bankruptcy law in effect at the further proceedings mooted the issues raised in Roccaforte's time “vested in the bankruptcy courts exclusive jurisdiction” interlocutory appeal. 9 and “withdr[ew] from all other courts all power under any circumstances”). For that reason, we have held that actions 8 See, e.g., Guest v. Dixon, 195 S.W.3d 687, 688 taken in violation of a bankruptcy stay are void, not just (Tex.2006) ( “[W]e have repeatedly stressed that voidable. Cont'l Casing Corp. v. Samedan Oil Corp., 751 procedural rules should be construed and applied so S.W.2d 499, 501 (Tex.1988). 7 that the right of appeal is not unnecessarily lost to technicalities.”); Crown Life Ins. Co. v. Estate of 7 Gonzalez, 820 S.W.2d 121, 121–22 (Tex.1991) (per But see Sikes v. Global Marine, Inc., 881 F.2d 176, 178 curiam)(stating that procedural rules should be “liberally (5th Cir.1989) (holding that, under the 1978 Bankruptcy construed so that the decisions of the courts of appeals Act, “the better reasoned rule characterizes acts taken turn on substance rather than procedural technicality”). in violation of the automatic stay as voidable rather than void”); see also Chisholm v. Chisholm, No. 04–06– 9 See, e.g., Isuani v. Manske–Sheffield Radiology Grp., 00504–CV, 2007 WL 1481574, at *2–3, 2007 Tex.App. P.A., 802 S.W.2d 235, 236 (Tex.1991) (holding that LEXIS 3936, at *6–7 (Tex.App.-San Antonio May final judgment mooted interlocutory appeal of order 23, 2007, no pet.) (noting conflict between Sikes and granting or denying temporary injunction); Providian Continental Casing ); In re De La Garza, 159 S.W.3d Bancorp Servs. v. Hernandez, No. 08–04–00186–CV, 119, 120–21 (Tex.App.-Corpus Christi 2004, no pet.) 2005 WL 82197, at *1, 2005 Tex.App. LEXIS 288, at (same); Oles v. Curl, 65 S.W.3d 129, 131 n. 1 (Tex.App.- *2 (Tex.App.-El Paso Jan. 13, 2005, no pet.) (mem.op.) Amarillo 2001, no pet.)(same); Chunn v. Chunn, 929 (dismissing as moot interlocutory appeal from order S.W.2d 490, 493 (Tex.App.-Houston [1st Dist.] 1996, no denying motion to compel arbitration, because trial court pet.) (same). entered an order compelling arbitration); Mobil Oil Corp. [1] But as we have noted, “a court's action contrary to a v. First State Bank of Denton, No. 2–02–119–CV, 2004 statute or statutory equivalent means the action is erroneous WL 1699928, at *1, 2004 Tex.App. LEXIS 6940, at *2 or ‘voidable,’ not that the ordinary appellate or other direct (Tex.App.-Fort Worth July 29, 2004, no pet.) (dismissing as moot interlocutory appeal from class certification procedures to correct it may be circumvented.” Mapco, order, because trial court subsequently vacated order, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990); cf. Univ. decertified class, and dismissed class action); Lincoln of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, Property Co. v. Kondos, 110 S.W.3d 712, 715–16 359 (Tex.2004) (noting that failure to comply with a non- (Tex.App.-Dallas 2003, no pet.) (dismissing as moot jurisdictional statutory requirement may result in the loss interlocutory appeal of order granting class certification, of a claim, but that failure must be timely asserted and as trial court subsequently granted summary judgment compliance can be waived). That is the case here. The trial motion); see also Hernandez, 289 S.W.3d at 321 court's rendition of final judgment while the stay was in effect (acknowledging that a party may not, after trial and was voidable, not void, and Roccaforte's failure to object to an unfavorable judgment, prevail on a complaint that the trial court's actions waived any error related to the stay. the party's summary judgment motion should have been We must, therefore, confront the fact that the trial *924 granted, nor could a party complain of a failure to dismiss a health care liability claim based on an inadequate expert

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report, after a full trial and evidence establishing the Local Government Code section 89.0041 provides: elements of that claim). (a) A person filing suit against a county or against a county [3] Our procedural rules provide that: official in the official's capacity as a county official shall After an order or judgment in a civil deliver written notice to: case has been appealed, if the trial (1) the county judge; and court modifies the order or judgment, or if the trial court vacates the order or (2) the county or district attorney having jurisdiction to judgment and replaces it with another defend the county in a civil suit. appealable order or judgment, the appellate court must treat the appeal as (b) The written notice must be delivered by certified or from the subsequent order or judgment registered mail by the 30th business day after suit is filed and may treat actions relating to the and contain: appeal of the first order or judgment as relating to the appeal of the subsequent (1) the style and cause number of the suit; order or judgment. The subsequent (2) the court in which the suit was filed; order or judgment and actions relating to it may be included in the original (3) the date on which the suit was filed; and or supplemental record. Any party may nonetheless appeal from the (4) the name of the person filing suit. subsequent order or judgment. (c) If a person does not give notice as required by this TEX.R.APP. P. 27.3. Here, although the trial court's final section, the court in which the suit is pending shall judgment did not expressly modify its interlocutory order, dismiss the suit on a motion for dismissal made by the it did so implicitly. Because the claims against the County county or the county official. had not been severed, the County remained a party to the TEX. LOC. GOV'T CODEE § 89.0041. In 2005, the underlying proceeding despite the interlocutory appeal. The Legislature amended the Government Code to provide that final judgment necessarily replaced the interlocutory order, “[s]tatutory prerequisites to a suit, including the provision of which merged into the judgment, 10 even though Roccaforte's notice, are jurisdictional requirements in all suits against a interlocutory appeal remained pending. Under our rules, governmental entity.” TEX. GOV'T CODE § 311.034. however, we may treat this interlocutory appeal as an *925 appeal from the final judgment. That permits us to reach The County contends section 311.034 makes Roccaforte's the merits of Roccaforte's claims rather than dismiss the failure to comply with section 89.0041's notice requirements interlocutory appeal as moot. jurisdictional—an issue we have never decided. Our courts of appeals, however, have concluded that the notice 10 See Webb v. Jorns, 488 S.W.2d 407, 408–09 (Tex.1972) requirements are not jurisdictional, even in light of section (holding that interlocutory judgment merged into final 311.034. See El Paso Cnty. v. Alvarado, 290 S.W.3d judgment, which was then appealable). 895, 898–99 (Tex.App.-El Paso 2009, no pet.) (holding Although not relying on rule 27.3, the court of appeals took that section 89.0041 is not jurisdictional because section a similar approach, treating Roccaforte's appeal as though 311.034 applies only to prerequisites to file suit, not post- it were from the final judgment. 281 S.W.3d at 231 n. 1. suit notice requirements); Ballesteros v. Nueces Cnty., 286 Similarly, we treat Roccaforte's appellate complaints about S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009, pet. denied) the trial court's grant of the County's jurisdictional plea as (same); 281 S.W.3d 230, 232–33 (same); Dallas Cnty. v. though they related to the appeal of the final judgment. We Coskey, 247 S.W.3d 753, 754–56 (Tex.App.-Dallas 2008, pet. turn now to the merits of his claim. denied) (same); Dallas Cnty. v. Autry, 251 S.W.3d 155, 158 (Tex.App.-Dallas 2008, pet. denied) (same); Cnty. of Bexar v. Bruton, 256 S.W.3d 345, 348–49 (Tex.App.-San Antonio III. The post-suit notice requirements are not 2008, no pet.) (same). jurisdictional.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

[4] We presume “that the Legislature did not intend to make sufficient because the purpose of the statute was to ensure the [provision] jurisdictional[,] a presumption overcome only notice, and that purpose was accomplished), Ballesteros by clear legislative intent to the contrary.” City of DeSoto v. Nueces Cnty., 286 S.W.3d 566, 570 (Tex.App.- v. White, 288 S.W.3d 389, 394 (Tex.2009). The statutes' Corpus Christi 2009, pet. denied) (same), Dallas Cnty. v. Coskey, 247 S.W.3d 753, 757 (Tex.App.-Dallas 2008, language reflects no such intent here. Section 311.034 applies pet. denied) (same), and Dallas Cnty. v. Autry, 251 to prerequisites to suit, not notice requirements that can be S.W.3d 155, 158 (Tex.App.-Dallas 2008, pet. denied) satisfied only after suit is filed. Compare TEX. GOV'T CODE (same), with 281 S.W.3d at 237 (holding that “[r]eading § 311.034, with TEX. LOC. GOV'T CODEE § 89.0041 a broad actual notice or service exception into the statute (requiring notice of cause number, court in which case is —without any attempt by plaintiff to comply—would, in filed, and date of filing). Nor does Local Government Code effect, largely eliminate the specified, additional written section 89.0041 show such intent: that section states that notice requirement of the statute”). That conflict gives us a trial court may *926 dismiss a case for noncompliance jurisdiction over this interlocutory appeal. TEX. GOV'T only after the governmental entity has moved for dismissal. CODE § 22.225(c), (e). TEX. LOC. GOV'T CODEE 89.0041(c) (“If a person does [5] Section 89.0041 ensures that the appropriate county not give notice as required by this section, the court in which officials are made aware of pending suits, allowing the county the suit is pending shall dismiss the suit on a motion for to answer and defend the case. See Howlett, 301 S.W.3d at dismissal made by the county or the county official.”). The 846 (“The apparent purpose of section 89.0041 is to ensure motion requirement means that a case may proceed against that the person responsible for answering and defending the those governmental entities that do not seek dismissal—in suit—the county or district attorney-has actual notice of the other words, that a county can waive a party's noncompliance. suit itself.”); Coskey, 247 S.W.3d at 757 (“Section 89.0041's This confirms that compliance with the notice requirements notice of suit requirement against a county serves the purpose is not jurisdictional. See Loutzenhiser, 140 S.W.3d at 359 of aiding in the management and control of the City's finances (“The failure of a non-jurisdictional requirement mandated by and property....”). That purpose was served here—the county statute may result in the loss of a claim, but that failure must judge and the district attorney had notice within fifteen days be timely asserted and compliance can be waived.”). We find of Roccaforte's filing, and they answered and defended the no basis upon which to conclude that the Legislature intended suit. Cf. Loutzenhiser, 140 S.W.3d at 360 (observing that “if section 89.0041 to be jurisdictional. in a particular case a governmental unit were not prejudiced by lack of notice and chose to waive it, we do not see how the statutory purpose would thereby be impaired”). The IV. Where the appropriate county officials receive statute was not intended to create a procedural trap allowing timely notice of the suit, the case should not be dismissed a county to obtain dismissal even though the appropriate if notice was provided by some means other than mail. officials have notice of the suit. See *927 Southern Surety Roccaforte provided timely notice of every item required Co. v. McGuire, 275 S.W. 845, 847 (Tex.Civ.App.-El Paso by section 89.0041, and the requisite officials received that 1925, writ ref'd) (holding that failure to present written claim notice. Did the Legislature intend to bar Roccaforte's claim, to commissioners' court as required by statute did not bar merely because that notice was hand-delivered rather than the claim, because “[t]he purpose of the statute was fully mailed? accomplished by [oral presentment]”); see also Coskey, 247 S.W.3d at 757 (“The manner of delivery specified by the Roccaforte argues that the County's actual notice of the suit statute assures that county officials will receive notice of a and his substantial compliance with section 89.0041 should suit after it has been filed to enable it to respond timely and suffice. A number of courts of appeals (though not the court of prepare a defense.”). Because those officers had the requisite appeals in this case) agree with him. 11 The County disagrees, notice, we conclude that the trial court erred in dismissing arguing that the statute requires strict compliance with its Roccaforte's claims. terms, and dismissal is mandated if those terms are not satisfied. V. Conclusion 11 Compare Howlett v. Tarrant Cnty., 301 S.W.3d 840, Roccaforte's claims against the County should not have been 847 (Tex.App.-Fort Worth 2009, pet. denied) (holding dismissed for lack of notice. 12 We reverse the court of that substantial compliance with section 89.0041 was appeals' judgment as to those claims and remand the case

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

to the trial court for further proceedings. TEX.R.APP. P. since “the surest guide to legislative intent” is the language 60.2(d). lawmakers chose. 6 In other words, “Where text is clear, it is determinative of that intent.” 7 The Court today agrees 12 Because this issue is dispositive, we do not reach that nothing in Section 89.0041 relieves *928 Roccaforte Roccaforte's argument that 42 U.S.C. § 1983 preempts from compliance. So, to escape the statute's emphatic “shall section 89.0041's notice requirements. dismiss the suit” mandate, 8 the Court pivots on “actual notice” and “substantial compliance” and holds that the Justice WILLETT delivered a concurring opinion. statute's purpose was fulfilled via hand-delivery.

4 341 S.W.3d 919, 926 (explaining that compliance with Justice WILLETT, concurring in part. the notice requirements of Section 89.0041 of the I join Parts I–III of the Court's opinion. As for Part IV, I join Local Government Code “is not jurisdictional”) (citation the result but not the reasoning. There is a better approach, one omitted). more allegiant to the Legislature's words. Roccaforte's claim should proceed, but the reason is rooted not in his substantial 5 341 S.W.3d at 926. compliance but rather the County's substantial dalliance. 6 Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex.2010) (citation and quotation marks omitted). *** 7 Id. Aristotle would have enjoyed this case, which perfectly 8 See TEX. LOC. GOV'T CODEE § 89.0041(c). illustrates the challenge he recognized of reconciling the “absoluteness” of the written law with equity in the particular Honoring a statute's plain words is indispensable, even 1 if enforcing those words as written works an unpalatable case. Believing that “the equitable is superior” and that rigid result. To be sure, courts deviate from otherwise-clear laws must bend, 2 Aristotle urged “a correction of law where textual commands to avert “absurd” results or to vindicate it is defective owing to its universality.” 3 From Athens, constitutional principles. 9 But as a general matter, if the Greece to Athens, Texas (and beyond), judges still debate the legal deck is stacked via technical statutory requirements, the bounds of interpretive discretion—whether it is appropriate to temper the “absoluteness” of statutory mandates and Legislature should reshuffle the equities, not us. 10 ameliorate their seeming harshness. Millennia may have passed since Aristotle's Lyceum, but this great philosophical 9 The absurdity doctrine, rightly understood, is a safety and jurisprudential debate endures. valve reserved for truly exceptional cases, not just those where the mandated statutory outcome is thought unwise 1 or inequitable. See generally John F. Manning, The Aristotle, Nicomachean Ethics bk. V, ch. 10. Absurdity Doctrine, 116 HARV. L.REV.. 2387 (2003). 2 Id. As Chief Justice Marshall famously put it, a court's allegiance to the text ceases when applying the text 3 Id. “would be so monstrous that all mankind would, without hesitation, unite in rejecting the application.” Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 203, 4 L.Ed. 529 I (1819).

As the Court persuasively explains in Part III, the post-suit 10 The Legislature can, of course, if it wishes, statutorily notice requirements in Section 89.0041 are not jurisdictional, overturn today's holding that Section 89.0041 is nonjurisdictional and subject to an actual-notice meaning a County can waive a plaintiff's noncompliance. 4 exception. Here, the County objected to Roccaforte's noncompliance, prompting the Court to ask: “Did the Legislature intend to As for whether Section 89.0041's use of phrases like “shall bar Roccaforte's claim, merely because that notice was hand- deliver,” 11 “must be delivered,” 12 “as required,” 13 and delivered rather than mailed?” 5 If phrased that way, our “shall dismiss” 14 mandates strict compliance, I would recent and unanimous precedent answers the question “yes,” take the statute at face value. Beyond that, those desiring

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

additional reassurance that lawmakers intended what they the purpose of the statute was to ensure notice, and that enacted can find it in a properly contextual reading of other purpose was accomplished); Ballesteros v. Nueces Cnty., notice-related statutes. 286 S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009, pet. denied) (same); Dallas Cnty. v. Coskey, 247 S.W.3d 753, 757 (Tex.App.-Dallas 2008, pet. denied) (same); 11 TEX. LOC. GOV'T CODEE § 89.0041(a). Dallas Cnty. v. Autry, 251 S.W.3d 155, 158 (Tex.App.- 12 Dallas 2008, pet. denied) (same)). Two of the three courts Id. § 89.0041(b). of appeals even cite as support two of our decisions 13 Id. § 89.0041(c). involving notice in other contexts. Coskey, 247 S.W.3d at 757 (“Both Artco–Bell Corp. and Cox Enterprises, 14 Id. Inc.. support a standard of substantial compliance with First, the Legislature, while omitting an actual-notice notice requirements under certain circumstances, and we exception from Section 89.0041, expressly included one conclude that standard applies in these circumstances.”) in the Tort Claims Act, stating the Act's pre-suit notice (citations omitted); Ballesteros, 286 S.W.3d at 571–72. A third court of appeals opinion in turn relies upon requirements “do not apply if the governmental unit has Coskey. See Autry, 251 S.W.3d at 158. actual notice....” 15 The Legislature understands how to Closer analysis reveals Coskey and Ballesteros offer let actual notice excuse technical noncompliance; it easily feeble support, as they misinterpret this Court's could have said actual notice suffices, thus obviating the holdings in Cox Enters., Inc. v. Bd. of Trs. of Austin need for service via certified or registered mail. Instead, Indep. Sch. Dist., 706 S.W.2d 956 (Tex.1986), and it opted against actual notice, presumably on purpose. For Artco–Bell Corp. v. City of Temple, 616 S.W.2d 190 better or worse, lawmakers enacted strict compliance, not (Tex.1981). The issue in Cox involved how much substantial compliance. Our interpretive focus, both textual particularity was required in notice. 706 S.W.2d at and contextual, must be on the law as written, and we should 960 (noting that “less than full disclosure is not substantial compliance” and that “the Open Meetings refuse to engraft what the Legislature has refused to enact. Act requires a full disclosure of the subject matter of the meetings”). Artco–Bell is likewise inapposite. 15 TEX. CIV. PRAC. & REM.CODE § 101.101(c). In Artco–Bell, the Court simply invalidated the Second, reading “actual notice” into Section 89.0041's post- notice requirement in a city's charter and held the suit notice requirement robs it of any real meaning and plaintiff had provided sufficient notice. 616 S.W.2d at 193–94 (“[W]e hold that the requirement of also makes Section 89.004's pre-suit notice requirement verification represents an unreasonable limitation on redundant. Section 89.004 forbids someone from suing a the City's liability and is invalid as it is contrary to county or county official “unless the person has presented the limitation of authority placed upon home rule the claim to the commissioners court and the commissioners cities....”) (footnote omitted). court neglects or refuses to pay all or part of the claim....” 16 Cox was about the specificity of notice; Artco–Bell This presentment requirement assures actual notice of a claim resulted in the invalidation of notice. In neither case before it is filed and was already on the books when Section did the Court craft an exception for notice. The lower 89.0041 was added in 2003. Logically then, Section 89.0041 courts' treatment of these cases was thus strained, must require something in addition to the preexisting notice and should not be taken as a correct reading of our jurisprudence on statutory notice requirements. and presentment requirements. 17 *929 The requisite officials here received notice, but they 16 TEX. LOC. GOV'T CODEE § 89.004(a). did not receive “requisite notice,” as the Court states. 18 The Court may deem it adequate, but it is irrefutably 17 Another point: As the Court notes, some courts not requisite. As the Court reads Section 89.0041, it is of appeals have concluded that a substantial- not only nonjurisdictional (I agree on this point), but also compliance exception lies hidden within Section nonmandatory. I acknowledge the statute's no-exceptions 89.0041, notwithstanding the statute's emphatic “shall mandate works a harsh result, 19 but to the degree this seems dismiss” mandate. 341 S.W.3d at 928 (citing Howlett v. Tarrant Cnty., 301 S.W.3d 840, 847 (Tex.App.- a trap for the unwary, it is a trap the Legislature left well Fort Worth 2009, pet. denied) (holding that substantial marked. compliance with Section 89.0041 was sufficient because

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

18 341 S.W.3d at 927. point, which on these facts is not whether the County sought dismissal, but when. A governmental body can 19 Had the County “timely asserted” Roccaforte's raise a jurisdictional bar like immunity from suit whenever noncompliance, dismissal would have been mandatory it pleases because “the trial court does not have—and under the statute's rigid, no-discretion mandate, thus never had—power to decide the case,” 21 thus making raising the question of whether Section 89.0041's notice regime is preempted by 42 U.S.C. § 1983. See Univ. judgments forever vulnerable to delayed attack. Not so with of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, nonjurisdictional requirements like this, which are waived 359 (Tex.2004) (“The failure of a non-jurisdictional if not timely raised. Under our precedent, dismissal delayed requirement mandated by statute may result in the loss is sometimes dismissal denied: “The failure of a non- of a claim, but that failure must be timely asserted jurisdictional requirement mandated by statute may result in and compliance can be waived.”). That question, while the loss of a claim, but that failure must be timely asserted and interesting legally, is not before us. compliance can be waived.” 22 Moreover, “if a governmental unit is to avoid litigation to which it should not be subjected because of lack of notice, it should raise the issue as soon as II possible.” 23 On these facts, there was no timely assertion, Having said all that, I agree with the Court that Roccaforte much less one made “as soon as possible.” 24 ultimately wins his notice dispute, but on different grounds. Instead of asking whether the Legislature meant to bar 21 In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 306 Roccaforte's claim, (Tex.2010) (citation omitted).

I would rephrase the question in a manner less assaultive 22 Loutzenhiser, 140 S.W.3d at 359 (emphasis added). to the statutory text: Did the County effectively waive 23 Id. at 360. “Moreover, if in a particular case a Roccaforte's noncompliance by not timely asserting it? I governmental unit were not prejudiced by lack of notice believe so. 20 and chose to waive it, we do not see how the statutory purpose would thereby be impaired.” Id. 20 Waiver may actually be the wrong term; it may be 24 Reading Section 89.0041 in tandem with our more accurate to call this forfeiture. As the United settled precedent distinguishing mandatory requirements States Supreme Court explains: “Waiver is different from (waivable) from jurisdictional ones (nonwaivable) is forfeiture. Whereas forfeiture is the failure to make the consistent with a textualist approach that integrates timely assertion of a right, waiver is the intentional established interpretive norms. For example, even the relinquishment of a known right.” United States v. most ardent textualist would read a statute of limitations Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d in light of the common-law rules of equitable tolling. 508 (1993) (emphasis added) (citations and quotation See Young v. United States, 535 U.S. 43, 49, 122 S.Ct. marks omitted). In any event, under our definition: 1036, 152 L.Ed.2d 79 (2002) (“It is hornbook law that “[W]aiver” is the intentional relinquishment of limitations periods are customarily subject to equitable a right actually or constructively known, or tolling, unless tolling would be inconsistent with the intentional conduct inconsistent with claiming that text of the relevant statute.”) (citations and quotation right. The elements of waiver include (1) an existing marks omitted); see also United States v. Beggerly, 524 right, benefit, or advantage held by a party; (2) U.S. 38, 48, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998). the party's actual or constructive knowledge of As Justice Scalia noted in Young, a limitations period its existence; and (3) the party's actual intent is subject to the principles of equitable tolling, so long to relinquish the right or intentional conduct as the statutory text does not preclude such tolling. inconsistent with the right. 535 U.S. at 47, 122 S.Ct. 1036. Same here, where Perry Homes v. Cull, 258 S.W.3d 580, 602–03 the Legislature drafts notice requirements in light of (Tex.2008) (citations omitted). our decisions differentiating between mandatory and *930 True, the County, after waiting for limitations jurisdictional provisions and the consequences that flow to expire, filed a motion for dismissal complaining that from each characterization. Roccaforte provided notice via personal service rather than We have held that waiver is decided on a case-by-case basis, registered or certified mail. I believe that obscures the key meaning courts look to the totality of the circumstances. 25

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011) 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

26 It is true that defendants may assert defenses like Here, *931 the County sought dismissal based on imperfect notice more than two years after suit was filed; more than limitations in the trial court even following extensive two years after the County filed its answer; more than two discovery and other pre-trial activity. See TEX.R. CIV. years after the County filed its special exceptions; after the P. 94 (affirmative defenses including limitations must be pleaded); TEX.R. CIV. P. 63 (pleadings may be County presented three County officials for deposition and amended without leave of court until seven days before defended those depositions; after the County sent written trial). Today's case, though, involves a statutory notice discovery requests; after the County deposed Roccaforte; and requirement that mandates action within a prescribed after the County filed a motion for continuance. If two-plus time, something Loutzenhiser held should be raised “as years qualifies as “timely asserted” or “as soon as possible”— soon as possible” since the statutory purpose is to avoid at least in the context of a statutory notice requirement litigation altogether. 140 S.W.3d at 360. commanding action—then these phrases have been drained Section 89.0041 may not be a prerequisite to bringing of all meaning. 26 Indeed, the only thing the County “timely suit, but it is a postrequisite to maintaining suit. In asserted” was limitations. I would disallow the County's my view, Section 89.0041, unlike the Tort Claims Act, does not allow actual notice to forgive defective belated insistence on dismissal given its decision to defend notice, but that does not mean actual notice may the case for so long, asserting noncompliance only after not affect the waiver inquiry of whether a defendant seizing tactical advantage via limitations, and thus materially “timely asserted” noncompliance. For reasons stated prejudicing Roccaforte. There is no countervailing prejudice above, I believe a county that quickly asserts statutory in allowing Roccaforte's suit to proceed against the County, noncompliance, even if it has actual notice, is entitled which can hardly argue at this late stage that imperfect to dismissal under Section 89.0041. But a county notice has harmed its legal position (unlike its fiscal position, with actual notice that untimely asserts noncompliance having underwritten years of legal and judicial expenses). On (here only after limitations had run two-plus years these facts, two-plus years of litigation activity to run out later) has waived its objection and is not entitled the limitations clock betrays the County's too-little, too-late to dismissal. See City of DeSoto v. White, 288 request for dismissal and constitutes waiver. S.W.3d 389, 400–01 (Tex.2009) (noting that a party that declines to act in light of “full knowledge” of 25 a defect in a nonjurisdictional notice requirement See Perry Homes, 258 S.W.3d at 589–91 (explaining generally waives any complaint). Any other result that a party waives an arbitration clause by engaging would incentivize counties to sit on their rights rather in substantial litigation to the other party's detriment or than assert them immediately. Here, the County would prejudice). be rewarded for wasting over two-years' worth of In Jernigan v. Langley, the Court considered whether judicial resources and taxpayer dollars in defending a a defendant physician waived his statutory right suit it could have easily dismissed from the outset. to contest the adequacy of the plaintiff's expert *** reports by waiting too long. 111 S.W.3d 153, 153 (Tex.2003). The Court held that delay does not always The Court's understandable desire to work an eminently fair result in waiver, but it does when the defendant's result has led it to revise the statute as desired rather than read silence or inaction for such a long period shows it as enacted. I favor a different approach to the same outcome. an intent to yield a known right. Id. at 157. I Roccaforte should win not because the Court waived the would hold that the County's actions are inconsistent Legislature's words but because the County did. with the intent to assert its statutory right to up- front dismissal based on defective notice. Moreover, Jernigan predates our 2004 decision in Loutzenhiser, All Citations which speaks specifically to statutorily mandated notice requirements involving governmental units and 341 S.W.3d 919, 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900 says notice-based objections should be asserted “as soon as possible.” 140 S.W.3d at 360.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934 (1983)

is mandatory. Vernon's Ann.Texas Civ.St. art. 4590i, § 4.01. KeyCite Yellow Flag - Negative Treatment Declined to Follow by Neal v. Oakwood Hosp. Corp., Mich.App., 46 Cases that cite this headnote December 12, 1997

652 S.W.2d 934 [2] Health Supreme Court of Texas. Notice 198H Health David Joe SCHEPPS et al., Petitioners, 198HV Malpractice, Negligence, or Breach of v. Duty PRESBYTERIAN HOSPITAL 198HV(G) Actions and Proceedings OF DALLAS, Respondent. 198Hk807 Notice (Formerly 299k18.20 Physicians and No. C–1591. | June 22, 1983. Surgeons) | Rehearing Denied July 20, 1983. Barring further prosecution of medical malpractice action is not appropriate remedy for Medical malpractice suit was brought against hospital and plaintiff's failure to give notice under provision physician alleging malpractice as to plaintiffs' son. The of Medical Liability and Insurance Improvement District Court No. 192, Dallas County, Leftwith, J., granted Act requiring giving 60 days' notice prior to defendants' motion for summary judgment and ordered that filing suit; rather, upon motion of defendant, plaintiffs take nothing. The Court of Appeals, 638 S.W.2d cause should be abated for 60 days. Vernon's 156, reversed, and instructed dismissal of plaintiffs' cause. Ann.Texas Civ.St. arts. 4590i, 4590i, § 4.01. The Supreme Court, Kilgarlin, J., held that: (1) notice provision contained in Medical Liability and Insurance 61 Cases that cite this headnote Improvement Act is mandatory, but (2) appropriate remedy when plaintiff fails to give notice is not a bar of further prosecution of suit, but rather, upon motion of defendant, cause should be abated for 60 days. Attorneys and Law Firms

Remanded. *935 Carp & Eddleman, William R. Eddleman, Dallas, for petitioners. Pope, C.J., dissented and filed opinion. Jackson, Walker, Winstead, Cantwell & Miller, C. Steven Matlock, Thompson & Knight, Richard E. Gray and Gerald H. Grissom, Dallas, for respondent. West Headnotes (2) Opinion

[1] Health KILGARLIN, Justice. Notice Two issues are presented by this case. Is the notice 198H Health provision contained in the Medical Liability and Insurance 198HV Malpractice, Negligence, or Breach of Duty Improvement Act, 1 which requires giving sixty days notice 198HV(G) Actions and Proceedings prior to filing suit, mandatory? If so, what is the appropriate 198Hk807 Notice remedy when a plaintiff fails to give notice? (Formerly 299k18.20 Physicians and Surgeons) 1 Tex.Rev.Civ.Stat.Ann. art. 4590i § 4.01. Notice provision contained in Medical Liability and Insurance Improvement Act, which requires Mr. and Mrs. Schepps filed this suit against Presbyterian giving 60 days' notice prior to filing suit, Hospital of Dallas and Patterson S. Reaves, M.D., alleging their malpractice as to Robert Allen Schepps, the Schepps'

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934 (1983)

sixteen-year old son. 2 Presbyterian Hospital and Dr. Reaves (d) All parties shall be entitled to obtain complete and each moved for summary judgment, alleging that the Schepps unaltered copies of the claimant's medical records from failed to give at least sixty days notice prior to filing the any other party within 10 days from the date of receipt suit. The trial court granted both motions and ordered that of a written request for such records; provided, however, the Schepps take nothing. The court of appeals agreed that that the receipt of a medical authorization executed by the the notice provision was mandatory, but reversed on the claimant herein shall be considered *936 compliance by basis that it was improper to render a take nothing judgment the claimant with this section. and instructed the trial court to dismiss the Schepps' cause. 638 S.W.2d 156. We affirm the judgment of the court of The Schepps argue that section 4.01 is merely directory appeals insofar as it reverses the judgment of the district court. rather than mandatory and that failure to comply with the However, we reverse the judgment of the court of appeals notice provision should not result in the loss of their cause with respect to the disposition ordered on remand. of action. They acknowledge that the word “shall” is used in the pertinent provision, but contend that the word should be 2 Likewise sued was James W. Cotter, M.D., who was non- treated as directory in application. See Thomas v. Groebl, 147 suited by the Schepps. Tex. 70, 212 S.W.2d 625, 630 (1948). Presbyterian Hospital On July 16, 1978, Robert Allen Schepps was involved in a and Dr. Reaves argue that the word “shall” can only be motor vehicle accident in Dallas, Texas. He was taken by construed in this case to be mandatory and, accordingly, ambulance to Presbyterian Hospital where he was allegedly failure to give notice is a bar to prosecution of this suit. examined by Dr. Reaves. Some three hours later he was transferred to Parkland Memorial Hospital in Dallas. He This Court stated the general guidelines for determining died three days later. The Schepps filed their lawsuit on whether a statutory provision is mandatory or directory in May 12, 1980. After the two year statute of limitations ran, Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943 Presbyterian Hospital and Dr. Reaves filed their motions for (1956): summary judgment. As stated, the district court granted the motions for summary judgment and ruled that the Schepps There is no absolute test by which take nothing. it may be determined whether a statutory provision is mandatory or The sixty-day notice provision at issue in this case is directory. The fundamental rule is contained in article 4590i, section 4.01, which reads as to ascertain and give effect to the follows: legislative intent. Although the word “shall” is generally construed to be (a) Any person or his authorized agent asserting a health mandatory, it may be and frequently care liability claim shall give written notice of such is held to be merely directory. In claim by certified mail, return receipt requested, to each determining whether the Legislature physician or health care provider against whom such claim intended the particular provision to is being made at least 60 days before the filing of a suit be mandatory or merely directory, in any court of this state based upon a health care liability consideration should be given to the claim. entire act, its nature and object, and the consequences that would follow from (b) In such pleadings as are subsequently filed in any court, each construction. Provisions which each party shall state that it has fully complied with the are not of the essence of the thing provision of this section and shall provide such evidence to be done, but which are included thereof as the judge of the court may require to determine for the purpose of promoting the if the provisions of this Act have been met. proper, orderly and prompt conduct of business, are not generally regarded (c) Notice given as provided in this Act shall toll the as mandatory. If the statute directs, applicable statute of limitations to and including a period of authorizes or commands an act to be 75 days following the giving of the notice, and this tolling done within a certain time, the absence shall apply to all parties and potential parties. of words restraining the doing thereof

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afterwards or stating the consequences meritorious. Therefore, the Commission recommended that of failure to act within the time a process be made available that would facilitate the early specified, may be considered as a identification of unmeritorious suits. circumstance tending to support a directory construction. 4 Section 1.02(a)(13) of article 4590i, Texas Revised Civil Statutes Annotated (Medical Liability Insurance Id. at 945. 3 Keeping these guidelines in mind, we turn Improvement Act), explicitly states that the Legislature to the legislative history behind article 4590i, section 4.01. adopted the findings made by the Keeton Commission. We additionally note that section 4.01 is a notice statute in The Commission proffered two suggestions in this regard: (1) derogation of the common law and, therefore, is to be strictly a period of time prior to the filing of suit should be set aside construed. City of Waco v. Roberts, 121 Tex. 217, 48 S.W.2d for discussion between the parties, in order that an amicable 577 (1932). agreement might be reached without the necessity for formal action; and (2) in the event a settlement was not reached, a 3 In addition to Chisholm v. Bewley Mills, 155 Tex. 400, mandatory screening panel should be established to review 287 S.W.2d 943 (1956), and Thomas v. Groebl, 147 Tex. claims prior to the filing of suit. The report indicates that 70, 212 S.W.2d 625 (1948), other holdings of this Court the Keeton Commission sought to eliminate frivolous and employing similar tests with similar results are Lewis unjustified claims from being filed as lawsuits so malpractice v. Jacksonville Building and Loan Assoc., 540 S.W.2d carriers would not be called upon to expend large sums of 307 (Tex.1976); Kilday v. Germany, 139 Tex. 380, 163 money in defense of such suits, which of necessity would S.W.2d 184 (1942); Markowsky v. Newman, 134 Tex. affect premiums paid by health care providers. It is significant 440, 136 S.W.2d 808 (1940); Federal Crude Oil Co. v. Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56 (1932), to note that the sixty-day notice provision and the screening and Hess and Skinner Engineering Co. v. Turney, 109 panel provision would constitute a combined program to Tex. 208, 203 S.W. 593 (1918). weed out the unmeritorious claims.

In 1975, physicians and other health care providers asked Numerous bills were subsequently introduced in both houses the Legislature to address the problem of the spiraling cost to implement the Commission recommendations. The final of medical malpractice insurance. As a remedial measure House version, H.B. 1048, provided for both the sixty- the Legislature enacted the Professional Liability Insurance day notice provision and the health care screening panel, for Physicians, Podiatrists and Hospitals Act, which became as recommended by the Commission. The bill additionally codified as article 5.82 of the Texas Insurance Code. At contained “intent” language in the notice section which the time of the adoption of article 5.82, the Legislature stated: specifically provided that the measure would be temporary in nature by allowing it to expire by its own terms on It is the intention of this section December 31, 1977. However, with a goal toward creating that all parties attempt to dispose of long-term legislation to provide relief for physicians and a health care liability claim without other medical care providers, the Legislature created the the necessity of review by health Texas Medical Professional Liability Study Commission and care screening panel or the filing and directed it to make a report to the 65th session of the pursuit of a lawsuit. Texas Legislature, scheduled to convene in January, 1977. That Commission became commonly known as the Keeton The final Senate version of H.B. 1048 completely removed Commission, adopting the name of its Chairman, former the portion of the bill concerning the creation of screening University of Texas Law School Dean, W. Page Keeton. panels and struck the “intent” language from the notice section. The House refused to concur in the Senate In its findings 4 , the Keeton Commission stated that a large amendments and the bill was sent to conference committee. percentage of the malpractice claims filed proved to be The conference committee accepted the Senate amendments unmeritorious, *937 and that the handling and processing of with minor changes, which did not affect the elimination of those claims involved cost. The Commission also recognized, screening panels or the intent language in the notice section. however, that a claim was not irresponsible and malicious The conference committee report was enacted into law. simply because it was not subsequently established to be

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Certain conclusions can be drawn from this legislative the notice provision, and (2) providing such evidence as the history. First, the original notice provision was an attempt to trial court may require as to proof of compliance. Had it not provide for resolution of malpractice claims without the filing been the intent of the Legislature that the notice provision of suit. Senator Kent Hance of Lubbock County, in explaining was mandatory, there would have been no need for the his amendment that deleted the intent language from the incorporation of paragraph (b) into the section. Accordingly, notice section, noted that the bill “merely states that you we conclude that the courts below were correct in construing would have to give notice to anyone before you file a lawsuit the language of section 4.01 as being mandatory, and notice against them.” Transcription, Senate proceedings, H.B. 1048, must be given at least sixty days before suit is filed. April 18, 1977. Second, the feature of the legislative proposal that might have best accomplished a resolution of malpractice In addition to the court of appeals in this cause, three other claims was eliminated from the bill—the screening panel courts have written in an effort to interpret section 4.01 of provision. We must conclude, therefore, that the Legislature article 4590i. Wilborn v. University Hospital, 642 S.W.2d in its final enactment upgraded the importance of the notice 50 (Tex.App.—Amarillo 1982, no writ) followed the court provision, for it remained as the only vehicle to encourage of appeals holding in this cause and held that compliance pre-suit negotiations. with the notice requirement was mandatory and that the cause should be dismissed. Because of our decision in this case, Tending to support a directory interpretation is that medical we disapprove of the disposition made in Wilborn. Burdett malpractice laws enacted by other states at approximately the v. Methodist Hospital, 484 F.Supp. 1338 (N.D.Tex.1980) same time as the Texas act contain more explicit mandatory reached a contrary conclusion, stating: “[I]f the Legislature language. See, e.g., Me.Rev.Stat.Ann. tit. 24 § 2903 (“No had wanted to subject a suit to dismissal for failure to give action ... shall be commenced ”); N.H.Rev.Stat.Ann. § 507– the notice, the Legislature could, and likely would, have so C:5 (“No action ... shall be commenced ”); Utah Code Ann. said.” Id. at 1341. § 78–14–8 (“No malpractice action ... may be initiated ”); Va.Code § 8.01–581.2 (“No action may be brought for [2] Having decided that “shall” is mandatory, there remains malpractice ... unless the claimant notifies”). 5 Additionally, our disposition of this case. The court of appeals would bar we note that no bill, including the one finally adopted, further prosecution because notice was not properly given. ever contained any provision as to the consequences of We disagree. We would observe that article 4590i, sections failure to give sixty days notice prior to filing suit. This is 1.02(b) and 1.02(b)(3) state: “[I]t is the purpose of the Act *938 significant because, as noted earlier, “the absence of to improve and modify the system by which health care words restraining the doing thereof afterwards or stating the liability claims are determined ... [and to] do so in a manner consequences of failure to act within the time specified, may that will not unduly restrict a claimant's right anymore than be considered as a circumstance tending to support a directory necessary to deal with the crisis.” We conclude that to bar construction.” Chisholm v. Bewley Mills, 155 Tex. at 403, prosecution for failure to give notice would constitute such an 287 S.W.2d at 945. undue restriction of claimant's right. The intent of the Keeton Commission and the Legislature was to encourage pre-suit 5 negotiations so as to avoid excessive cost of litigation. This The Keeton Commission report indicates consideration likewise can be accomplished by requiring an abatement of of Utah and Virginia materials. It may be presumed that the cause of action for a duration of sixty days in the event Senator Hance, who was a Commission member, was aware of the language in the notice sections of those that plaintiff fails to give the required notice, and at the same states' statutes. His final amendment of the notice section time protect plaintiff's right to maintain that lawsuit. For these of our statute made no effort to incorporate such clearly reasons we find no inconsistency in holding the provision mandatory language. mandatory, yet only subjecting the cause to abatement. [1] Had section 4.01 contained only paragraph (a), we Accordingly, we hold that in any medical malpractice action would be justified in concluding that the notice provision was subject to article 4590i, where a plaintiff has failed to give merely directory. However, that section cannot be read in a notice sixty days prior to the filing of suit, upon motion of the vacuum. Paragraph (b) clearly evidences an intent upon the defendant, the cause should be abated for sixty days. This case part of the Legislature that the giving of notice is mandatory. is remanded to the trial court for disposition not inconsistent That paragraph contains two requirements: (1) an affirmative with this opinion. statement in the pleadings that there has been compliance with

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The Texas Legislature was at first presented with a two-step mechanism as a means to eliminate spurious claims. The first was the notice provision contained in section 4.01. The POPE, C.J., dissents. second was the proposal for a mandatory screening panel. That panel had to act before a suit was filed. The legislature POPE, Chief Justice, dissenting. determined that the pre-suit notice would be sufficient to I respectfully dissent. I dissent because the majority, while accomplish the purpose of weeding out the false, sham, and holding that the statutory requirement that a medical meretricious claims. Both provisions, however, contemplated malpractice claimant must give notice “at least 60 days before notice before suit was filed. the filing of suit,” also holds that it is all right if he does not give notice “at least 60 days before the filing of suit.” The I agree that the legislature in eliminating the second pre-suit statute means nothing, says the majority. step determined that only one step was necessary to achieve its purpose. It determined that the sixty-day pre-suit notice I agree with the majority holding that the Medical Liability would afford an opportunity for consultation, mediation, and and Insurance Improvement Act expressly requires sixty adjustment in many instances. I agree that the legislature *939 days notice prior to filing suit. Tex.Rev.Civ.Stat.Ann. in eliminating the two-step pre-suit requirement, determined art. 4590i, § 4.01. I agree that the legislative history that the sixty-day notice provision was enough and would demonstrates an intent to reject those claims that are accomplish its objective. groundless and unmeritorious—those that are filed as nuisance suits that are costly and embarrassing to the medical The legislature intended the avoidance of nuisance suits. They provider. I agree that the Keeton Commission found that clog dockets, stand in the way of meritorious claims, and malpractice claims, and especially the nuisance claims, constitute that vast body of lawsuits that are on the docket but magnify the costs for all users of medical services. are not being pressed for trial. See J. Lieberman, The Litigious Society 3–5, 66–68 (1981). I agree that it was the surplus of nuisance and embarrassment claims that generated the excessive malpractice and premium The modest purpose of the legislature was to clear the dockets costs. I further agree that the legislature intended to eliminate for those cases that have merit to their claims. The whole needless court costs and litigation by weeding out some of statute is frustrated when we permit the claimant to ignore the the spurious claims by requiring the patient to notify the statute, file the suit, and then let the case take its course. physician or health care provider sixty days before filing suit. The purpose of the act was to keep cases from reaching I would hold up the arm of the legislature and affirm the the stage of a lawsuit, with its process, discovery, mag- judgment of the court of appeals, which instructs the trial card and mimeographed multiple interrogatories, requests for court to dismiss the suit. admissions, and depositions. These procedures constitute the per-hour costs of present litigation, even in the instance of the All Citations spurious suit. It was this evil that article 4590i, section 4.01 purposed to eliminate. 652 S.W.2d 934

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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 State v. Titan Land Development Inc., --- S.W.3d ---- (2015) 2015 WL 3637982

Time within which State was required to object to special commissioners' award 2015 WL 3637982 in condemnation proceeding, under statute Only the Westlaw citation is currently available. requiring objections to be filed by the Court of Appeals of Texas, “first Monday following the 20th day” after Houston (1st Dist.). commissioners filed their findings with the court, The State of Texas, Appellant began to run on date State actually filed award v. in the trial court, rather than date several days Titan Land Development Inc. and earlier on which State should have filed award, despite contention that State should not benefit Bauer–Hockley 550, L.P., Appellees from its own tardiness; statute requiring award NO. 01–14–00899–CV | to be filed on day decision was made or next Opinion issued June 11, 2015 working day did not provide a remedy or penalty for late filing, and time to object was clearly Synopsis linked to the date award was actually filed. U.S. Background: State filed condemnation provision, seeking Const. Amend. 5; Tex. Prop. Code Ann. §§ to acquire 85.02 acres out of a 549.643–acre tract 21.018(a), 21.048(1). for construction of a highway. Special commissioners were appointed, resulting in an award of $7,500,000 in Cases that cite this headnote compensation to the landowners. State filed the award with the trial court, and then filed objections. The County Civil Court at Law No. 4, Harris County, granted landowners' motion for entry of judgment in the absence of objections On Appeal from County Civil Court at Law No. 4, Harris and entered judgment, finding that State's objections were County, Texas, Trial Court Case No. 1042641 untimely. State appealed. Attorneys and Law Firms

Susan Desmarais Bonnen, Assistant Attorney General, [Holding:] The Court of Appeals, Laura Carter Higley, J., Austin, TX, Randall K. Hill, Assistant Attorney General, Ken held that time within which State was required to object began Paxton, Attorney General of Texas, Charles E. Roy, First to run on date State actually filed special commissioners' Assistant Attorney General, James E. Davis, Deputy Attorney award in the trial court, rather than date several days earlier General for Civil Litigation, for Appellant. on which State should have filed award. Charles B. McFarland, McFarland PLLC, Houston, TX, for Appellees. Reversed and remanded. Panel consists of Justices Jennings, Higley, and Huddle.

West Headnotes (1) OPINION

Laura Carter Higley, Justice [1] Eminent Domain Objections and exceptions *1 This eminent-domain case involves a dispute over 148 Eminent Domain whether the State of Texas timely filed objections to the 148III Proceedings to Take Property and Assess special commissioners' award after the award was filed with Compensation the trial court. On appeal, the State challenges the trial 148k225 Assessment by Commissioners, court's “Judgment in the Absence of Objections to the Special Appraisers, or Viewers Commissioners' Award.” In one issue, the State asserts that 148k235 Objections and exceptions the trial court erred when it determined that the State had not timely filed its objections to the condemnation award.

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Titan and Bauer also pointed out that Property Code section We reverse and remand. 21.018(a)“provides that a party must object to the findings of the Special Commissioners ‘on or before the first Monday following the 20th day after the day the commissioners file

Background their findings with the court.’ ” 2 They reasoned that, because section 21.048 required the award to be filed no later than The underlying facts are undisputed. The State filed a petition the next working day after its issuance, any objections to the for condemnation, seeking to acquire 85.02 acres of land, award were required to have been filed by the first Monday out of a larger 549.643–acre tract, owned by Titan Land after the expiration of 20 days following May 2, 2014. Titan Development, Inc. (“Titan”) and Bauer–Hockley 550, L.P. and Bauer asserted, (“Bauer”) for the construction of State Highway 99 in Harris County. The petition was filed in County Civil Court at *2 The twentieth day following Law No. 4 (“the trial court”), which appointed three special May 2, 2014 was May 22, 2014, commissioners “to assess the damages occasioned by such which made the following Monday, condemnation.” May 26, 2014, the deadline to file objections. However, May 26, 2014 On May 1, 2014, the special commissioners conducted a was Memorial Day, which is a legal hearing at which the State's appraisal expert testified that holiday. Under such circumstances, “just compensation” for the taking was $5,808,994. Titan the last day to file objections to the and Bauer's appraisal expert testified that the landowners commissioners' findings was Tuesday, should be compensated $7,950,780. That same day, the May 27, 2014. commissioners signed a written statement in which they determined that Titan and Bauer should be awarded 1 SeeTEX. PROP. CODE ANN.. § 21.048 (Vernon 2014). $7,500,000 as damages for the condemnation of their 2 See id.§ 21.018(a) (Vernon 2014). property. The commissioners provided a copy of the written award to State's attorney in order for the State to file the Titan and Bauer claimed that the State's objections, filed written award with the trial court. The State filed the special on May 30, 2014, were filed too late. Finally, they pointed commissioners' award with the trial court on May 7, 2014. to Property Code section 21.061, which provides, if timely objections are not filed, the court shall adopt the special The trial court clerk sent a notice to the parties on May 9, commissioners' findings as the court's judgment. 3 Titan and 2014, stating “[t]hat the Award of Special Commissioners Bauer wrote, “This provision is mandatory in the absence of was filed on May 7, 2014 in the amount of $7,500,000. You timely-filed objections, and the Court only has jurisdiction to have until the first Monday following 20 days in which to file perform its ministerial duty of entering judgment on the award Objections to this award and make an appeal for a Jury Trial.” of commissioners in this proceeding.”

On May 30, 2014, the State filed objections to the 3 Seeid. § 21.061 (Vernon 2014). special commissioners' award, asserting that the award was excessive. The State also objected on the ground that the The State responded to the motion to enter judgment. The special commissioners “did not use the proper measure of State disagreed with Titan and Bauer's position that the period damages in arriving at the amount set forth in their decision for filing objections to the special commissioners' award and award.” began to run from the date the award should have been filed pursuant to section 21.048. The State asserted that, pursuant On June 11, 2014, Titan and Bauer filed their “Motion to Property Code section 21.018, the period to file objections for Entry of Judgment in the Absence of Objections.” to the award is calculated from the date the award is actually They pointed out that, pursuant to section 21.048 of the filed, which in this case was May 7, 2014. Using this date, Texas Property Code, the special commissioners' award was the State claimed that the deadline for filing objections to the required to have been filed on the day the decision was made award was June 2, 2014. Thus, its objections were timely filed or the next working day. 1 Thus, the award should have been on May 30, 2014. filed in the trial court on May 1, 2014 or May 2, 2014.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 State v. Titan Land Development Inc., --- S.W.3d ---- (2015) 2015 WL 3637982

Titan and Bauer replied, reiterating that section 21.048 facts. We review questions of statutory construction de requires the special commissioners' award to be filed on the novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011). day the decision is made or on the next working day. They Our fundamental objective in interpreting a statute is “to pointed out that the State failed to file the award pursuant to determine and give effect to the Legislature's intent.” Am. section 21.048 because it had filed the award six days later Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex.2012). than the date permitted by section 21.048. For this reason, “The plain language of a statute is the surest guide to the Titan and Bauer asserted, “The State cannot take advantage Legislature's intent.” Prairie View A & M Univ. v. Chatha, of its own delay to extend the statutory period within which 381 S.W.3d 500, 507 (Tex.2012). objections must be filed.” They averred, “The State cannot enlarge this Court's jurisdiction by holding the Award of the When statutory text is clear, it is determinative of legislative Special Commissioners beyond the statutory period required intent, unless enforcing the plain meaning of the statute's for its filing.” words would produce an absurd result. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009). The words The trial court granted Titan and Bauer's motion for entry of of the statute cannot be examined in isolation, but must be judgment. The trial court signed its “Judgment in the Absence construed based on the context in which they are used. TGS– of Objections to the Special Commissioners' Award.” In the NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 judgment, the trial court determined as follows: “On May 1, (Tex.2011). 2014, after having heard the evidence presented to them, the Special Commissioners entered an Award in the amount of $7,500,000.00. Objections were to have been filed by May B. Analysis 27, 2014. No objections to the Special Commissioners' Award The State asserts that, on May 30, 2014, it timely filed its were timely filed by any party to this lawsuit.” The trial court's objections to the special commissioners' award. The State judgment awarded the State title to the condemned property relies on Property Code section 21.018(a) to support its and ordered that Titan and Bauer recover $7,500,000.00 from position that the period for filing the objections is calculated the State. from May 7, 2014, the date the State filed the commissioners' award in the trial court. According to the State, under section This appeal followed. In one issue, the State asserts, “The trial 21.018(a), it had until June 2, 2014 to file its objections. court erred in entering a judgment in absence of objections where the State's objections were filed within the statutory Section 21.018, entitled “Appeal From Commissioners' time period for the filing of objections.” Findings,” provides:

(a) A party to a condemnation proceeding may object to the On appeal, the parties maintain the positions they held in the findings of the special commissioners by filing a written trial court. The State asserts that it timely filed its objections to statement of the objections and their grounds with the court the special commissioners' award pursuant to Property Code that has jurisdiction of the proceeding. The statement must section 21.018(a) because it filed the award before the first be filed on or before the first Monday following the 20th Monday following the expiration of 20 days from the date that day after the day the commissioners file their findings with the award was actually filed. In contrast, Appellees assert that, the court. under the facts of this case, the period for filing objections began to run from the date the State should have filed the (b) If a party files an objection to the findings of the special award, as specified in Property Code section 21.048. commissioners, the court shall cite the adverse party and try the case in the same manner as other civil causes.

TEX. PROP.CODE ANN. § 21.018 (Vernon 2014). State's Deadline to File Objections to Special Commissioners' Award Appellees agree that the State had until the first Monday A. Standard of Review following the expiration of 20 days to file objections to the *3 Resolution of which date began the period for the State commissioners' award. However, Appellees assert that, in this to file its objections to the special commissioners' award turns case, the 20–day period began to run on the date that the on the application of statutory language to the undisputed

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award was required to be filed under section 21.048(1) of the filing date of the award, irrespective of whether the State, Property Code which filed award for commissioners, had failed to timely file award pursuant to section 21.048). Section 21.048(1) provides: Undeniably, section 21.048's language, requiring the award After the special commissioners in an eminent domain to be filed by the next work day after it is made, indirectly proceeding have assessed the damages, they shall: affects when a party's objections will be due. However, neither section 21.018 nor section 21.048 addresses the (1) make a written statement of their decision stating the remedy, or any penalty, for the untimely filing of the damages, date it, sign it, and file it and all other papers commissioners' award, whether the untimely filing is made connected with the proceeding with the court on the day by the commissioners or by a party on the commissioners' the decision is made or on the next working day after the behalf Rather, section 21.018 serves to ameliorate the effect day the decision is made[.] of an untimely filing by directly linking the period during TEX. PROP.CODE ANN. § 21.048(1) (Vernon 2014). which a party must object to the date the award is filed. SeeTEX. PROP. CODE ANN.. § 21.018(a). In this way, the According to Appellees, the special commissioners fulfilled party desiring to object has the full time period in which to their duty under section 21.048(1) when they “entrusted” the object even when the award is filed late. State to file the award with the trial court in accordance with section 21.048(1). Under that provision, the State had until If it had intended either (1) to make the starting point for the May 2, 2014, which was the next work day after the award objection period the same date that the award was required to was made, to file the award with the trial court. Had the State be filed under section 21.048 or (2) to restrict a party's ability filed the award on May 2, 2014, the State's objections would to benefit from section 21.018's objection period when that have been due, pursuant to section 21.018(a), on May 27, party played a role in causing the award to be filed late, the 2014. However, the State did not file the award until May 7, Legislature could have enacted such provisions. SeeGarland, 2014, six days after the date required by section 21.048(1). 963 S.W.2d at 99 (“Had the Legislature intended the time period to run from the signing of the actual award, or from the *4 Appellees do not disagree that—pursuant to section date that the award should have been filed in court, it could 21.018(a)—had the commissioners, rather than the State, easily have said so.”). Absent such provisions and given the untimely filed the award on May 7, 2014, the State's plain language of section 21.018(a), we are without authority deadline to file its objections would have been June 2, 2014. to shorten the length of time that the State had to file its However, Appellees assert that, because the State, not the objections to the award. commissioners, “delayed” filing the award until May 7, 2014, the State should not benefit from its own tardiness; it should We are mindful that sections 21.018 and 21.048 speak to not be allowed “to enlarge” the period for filing its objections. the special commissioners filing the award in the trial court, Further, Appellees state that the statutory framework does rather than the State filing the award. However, Appellees not permit the State “[to] manipulate the time period within have not cited authority permitting a court to deviate from which its own objections could be filed by delaying in filing section 21.018's provisions when the party filing the award the award with the court, despite the mandatory obligation of is the State rather than the commissioners. Thus, courts must Section 21.048 of the Texas Property Code.” enforce section 21.018 as it is written, giving either party until the first Monday following the expiration of 20 days after the As stated, “The plain language of a statute is the surest commissioners' award is filed to object. guide to the Legislature's intent.” Chatha, 381 S.W.3d at 507. Here, the plain language of the statutory provisions We note that, in support of their position, Appellees point to reveals that only one provision governs when objections the following language in John v. State, 826 S.W.2d 138, 140 to the commissioners' award must be filed. That provision (Tex.1992): is section 21.018(a). SeeState v. Garland, 963 S.W.2d [I]n a condemnation action, the 95, 97 (Tex.App.–Austin 1998, pet. denied) (holding that, landowner is given a single under plain statutory language, starting point for computing opportunity to recover damages for deadline to file objections to commissioners' award is actual the taking of his property by the

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the amount of time in which the State may object. Section state for the public benefit.... As a 21.018 appears to already anticipate noncompliance with the result, the procedures set forth in filing requirement of section 21.048 by providing that the the condemnation statute must be starting point to calculate when objections must be filed is the strictly followed and its protections date the award is actually filed rather than the date the award liberally construed for the benefit of should have been filed under section 21.048. the landowner.

Moreover, in John, the statute was liberally construed to *5 In John, the trial court clerk did not mail notice of the alleviate the effects of section 21.018's time requirement for commissioners' award to the property owners within the time filing objections when the property owner had not received period required in Property Code section 21.049. Id. at 139. timely notice of the filing of the award. Id. The lack of The clerk mailed the notice 22 days late. Id. At that point, the notice had limited the property owner's statutory right to time for filing objections under section 21.018(a) had elapsed. timely object to the award. Seeid. at 139. In contrast, here, Id. Two days after the clerk mailed the notice of award, the Appellees do not request the statutory provisions be construed property owners filed their objections. Id. in a manner to aid them in preserving their statutory right to object, rather they seek to limit the State's right. The Supreme Court of Texas held that the landowners' objections were timely filed because the period to object to Given the plain language of section 21.018, we conclude that the commissioners' award was tolled until the clerk mailed the State had until June 2, 2014 to file its objections to the the notice of award as required by section 21.049. Id. special commissioners' award. The State's objections, filed on The court characterized section 21.049 as being mandatory, May 30, 2014, were timely. We hold that the trial court erred determining that “in condemnation cases, the clerk must when it granted the Appellees' motion for entry of judgment comply with the notice provisions.” Id. at 140. and signed the “Judgment in the Absence of Objections to the Special Commissioners' Award.” Here, Appellees assert that, similar to section 21.049, section 21.048 is mandatory. Appellees posit, “The language of We sustain the State's sole issue. Section 21.048 is mandatory, and a liberal construction of Section 21.048 for the benefit of the landowner does not permit a mechanical operation of Section 21.018 to trump the mandatory requirement of Section 21.048.” Conclusion

We reverse the judgment of the trial court and remand for It logically follows that a liberal construction of the statutory further proceedings. scheme results in the tolling of the time for landowners to file their objections when they have not been given proper notice of the commissioners' award by the court clerk, as All Citations in John. However, a liberal construction of section 21.048's filing requirement does not logically result in a reduction of --- S.W.3d ----, 2015 WL 3637982

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397 S.W.3d 162 West Headnotes (13) Supreme Court of Texas.

TEXAS DEPARTMENT OF TRANSPORTATION [1] Appeal and Error and City of Edinburg, Petitioners, Cases Triable in Appellate Court v. 30 Appeal and Error A.P.I. PIPE AND SUPPLY, LLC and Paisano 30XVI Review 30XVI(F) Trial De Novo Service Company, Inc., Respondents. 30k892 Trial De Novo No. 10–1020. | Argued Sept. 30k893 Cases Triable in Appellate Court 30k893(1) In general 12, 2012. | Decided April 5, 2013. Whether a court has jurisdiction is a matter of law Synopsis that an appellate court decides de novo. Background: Alleged purchaser of property brought inverse 7 Cases that cite this headnote condemnation action against city and Texas Department of Transportation (TxDOT), alleging that defendants removed dirt from area of drainage ditch easement without providing [2] Pleading compensation. The County Court at Law No. 2, Hidalgo Scope of inquiry and matters considered in County, Jaime Palacios, J., denied defendants' plea to the general jurisdiction, and defendants appealed. The Corpus Christi 302 Pleading Court of Appeals, Thirteenth District, 2008 WL 99629, 302III Responses or Responsive Pleadings in affirmed. Subsequently, the County Court denied defendants' General second plea to the jurisdiction, and defendants appealed. The 302III(B) Dilatory Pleas and Matter in Abatement Corpus Christi Court of Appeals, Thirteenth District, 328 302k111 Decision of Issue, and Proceedings S.W.3d 82, affirmed. Defendants petitioned for review. Thereon 302k111.36 Scope of inquiry and matters considered in general Evidence can be introduced and considered at Holdings: The Supreme Court, Willett, J., held that: the plea to the jurisdiction stage if needed to determine a court's jurisdiction. [1] judgment nunc pro tunc, purporting to render void prior judgment granting city title to property, was void; 3 Cases that cite this headnote

[2] innocent purchaser statute did not apply to alleged [3] Eminent Domain purchaser; and Jurisdiction Eminent Domain [3] doctrine of equitable estoppel did not apply to bar city and Plea, answer and subsequent pleading TxDOT from relying on prior judgment granting title to city. 148 Eminent Domain 148IV Remedies of Owners of Property; Inverse Reversed. Condemnation 148k286 Jurisdiction Lehrmann, J., filed a concurring opinion, in which Guzman, 148 Eminent Domain 148IV Remedies of Owners of Property; Inverse J., joined. Condemnation 148k293 Pleading 148k293(2) Plea, answer and subsequent pleading In an inverse condemnation action, a trial court lacks jurisdiction and should grant a plea to the

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jurisdiction where a plaintiff cannot establish a simple title that city had sought in condemnation viable takings claim. petition.

13 Cases that cite this headnote Cases that cite this headnote

[4] Eminent Domain [6] Judgment Property and Rights Subject of Allowing amendment nunc pro tunc Compensation 228 Judgment 148 Eminent Domain 228VIII Amendment, Correction, and Review in 148II Compensation Same Court 148II(B) Taking or Injuring Property as Ground 228k326 Allowing amendment nunc pro tunc for Compensation A judgment nunc pro tunc can correct a clerical 148k81 Property and Rights Subject of error in the original judgment, but not a judicial Compensation one. 148k81.1 In general To recover under the constitutional takings 3 Cases that cite this headnote clause, one must first demonstrate an ownership interest in the property taken. U.S.C.A. [7] Judgment Const.Amend. 5. Allowing amendment nunc pro tunc 2 Cases that cite this headnote 228 Judgment 228VIII Amendment, Correction, and Review in Same Court [5] Eminent Domain 228k326 Allowing amendment nunc pro tunc Matters concluded An attempted nunc pro tunc judgment entered Judgment after the trial court loses plenary jurisdiction is Allowing amendment nunc pro tunc void if it corrects judicial rather than clerical 148 Eminent Domain errors. 148III Proceedings to Take Property and Assess 3 Cases that cite this headnote Compensation 148k243 Conclusiveness and Effect of Award or Judgment in General [8] Judgment 148k243(2) Matters concluded Clerical errors 228 Judgment 228VIII Amendment, Correction, and Review in Judgment Same Court Allowing amendment nunc pro tunc 228k326 Allowing amendment nunc pro tunc 228 Judgment Judgment nunc pro tunc, purporting to render 228VIII Amendment, Correction, and Review in void prior judgment granting city title to Same Court real property, was void and could not affect 228k302 Nature of Errors or Defects validity of prior judgment, since alleged error 228k306 Clerical errors 228 Judgment it purported to correct was judicial, not clerical; 228VIII Amendment, Correction, and Review in prior judgment granted city fee simple ownership Same Court of property, judgment nunc pro tunc purported to 228k326 Allowing amendment nunc pro tunc turn city's ownership into a mere easement, there A “clerical error” in a judgment, which can be was no showing that prior judgment really meant corrected by a judgment nunc pro tunc, is one to convey an easement rather than a fee simple, which does not result from judicial reasoning or and prior judgment had been based on a special determination. commissioners' award which had granted fee 3 Cases that cite this headnote

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purchaser could bring inverse condemnation [9] Judgment action relating to property, where alleged Allowing amendment nunc pro tunc purchaser had notice of city's adverse interest; 228 Judgment alleged purchaser admitted that, prior to alleged 228VIII Amendment, Correction, and Review in purchase, it knew of recorded judgment in prior Same Court condemnation action granting city fee simple 228k326 Allowing amendment nunc pro tunc title to property. V.T.C.A., Property Code § Even a significant alteration to an original 13.001. judgment may be accomplished through a judgment nunc pro tunc so long as it merely 1 Cases that cite this headnote corrects a clerical error.

Cases that cite this headnote [12] Estoppel Particular state officers, agencies or proceedings [10] Judgment Estoppel Clerical errors Municipal corporations in general Judgment 156 Estoppel Allowing amendment nunc pro tunc 156III Equitable Estoppel 228 Judgment 156III(A) Nature and Essentials in General 228VIII Amendment, Correction, and Review in 156k62 Estoppel Against Public, Government, or Same Court Public Officers 228k302 Nature of Errors or Defects 156k62.2 States and United States 228k306 Clerical errors 156k62.2(2) Particular state officers, agencies or 228 Judgment proceedings 228VIII Amendment, Correction, and Review in 156 Estoppel Same Court 156III Equitable Estoppel 228k326 Allowing amendment nunc pro tunc 156III(A) Nature and Essentials in General If a signed judgment inaccurately reflects the true 156k62 Estoppel Against Public, Government, or decision of the court, then the error is clerical and Public Officers may be corrected by entry of judgment nunc pro 156k62.4 Municipal corporations in general tunc. Doctrine of equitable estoppel did not apply to bar city and Texas Department of Transportation Cases that cite this headnote (TxDOT) from relying on judgment granting city fee simple title in property, for purposes [11] Eminent Domain of determining whether alleged purchaser could Real property in general bring inverse condemnation action relating to property, where TxDOT employee had agreed 148 Eminent Domain 148II Compensation to judgment nunc pro tunc purporting to reduce 148II(B) Taking or Injuring Property as Ground city's interest in property from fee simple for Compensation to an easement; there was no showing that 148k81 Property and Rights Subject of employee had acted to deliberately induce any Compensation action favorable to TxDOT, alleged purchaser 148k82 Real property in general could have examined the conflicting judgments Innocent purchaser statute, protecting purchasers and seen that judgment nunc pro tunc had from unrecorded property conveyances, did been issued erroneously, and applying estoppel not apply to alleged purchaser of property, would impair government function of managing and thus alleged purchaser could not rely on drainage project. judgment nunc pro tunc purporting to render void prior judgment granting city title to property, Cases that cite this headnote for purposes of determining whether alleged

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Texas legal rules governing real-estate transactions demand [13] Estoppel assiduousness, lest *165 uncertainty subvert the orderly Estoppel Against Public, Government, or transfer of property. This inverse-condemnation dispute over Public Officers ten acres in Hidalgo County asks a simple question: Who 156 Estoppel has title to the parcel? The answer turns on the validity of 156III Equitable Estoppel conflicting recorded judgments: 156III(A) Nature and Essentials in General 156k62 Estoppel Against Public, Government, or 1. 2003 Judgment—which the Texas Department of Public Officers Transportation (TxDOT) and the City of Edinburg 156k62.1 In general claim gives the City fee-simple ownership, subject to a For equitable estoppel to apply against the drainage easement granted to TxDOT. government, two requirements must exist: (1) the circumstances must clearly demand estoppel's 2. 2004 Judgment—which A.P.I. Pipe Supply, LLC and application to prevent manifest injustice, and (2) Paisano Service Company, Inc. (collectively API) claim no governmental function can be impaired. gives API fee-simple ownership, subject to a drainage easement granted to the City (and, via subsequent 1 Cases that cite this headnote conveyance, to TxDOT).

In 2005, TxDOT began its drainage project, and API, relying on the 2004 Judgment, brought a takings claim for the Attorneys and Law Firms value of the removed soil. TxDOT counters that API lacks any ownership interest because the 2004 Judgment, which *164 Boone Channing Slusher, Slusher & Associates, purports to declare the 2003 Judgment “null and void,” is McAllen, TX, for Amicus Curiae San Jacinto Title. itself void—to which API replies, even if the 2003 Judgment controls, API is an “innocent purchaser” entitled to ownership Aaron Daniel Day, Texas Land Title Association, Austin, TX, under Property Code section 13.001. for Amicus Curiae Texas Land Title Association.

Daniel T. Hodge, First Asst. Attorney General, David C. We agree with TxDOT. The void 2004 Judgment cannot Mattax, Director of Defense Litigation, Office of the Attorney supersede the valid 2003 Judgment; API is statutorily General, Greg W. Abbott, Attorney General of Texas, James ineligible for “innocent purchaser” status; and equitable William Kirk II, Lisa Marie McClain, Office of the Attorney estoppel is inapplicable against the government in this case. Gen., Jonathan F. Mitchell, Solicitor General Office of the Because API's takings claim fails, we reverse the court of Attorney General, Joseph David ‘Jody’ Hughes, Assistant appeals' judgment and dismiss the suit. Solicitor General Office of the Attorney General, Susan Desmarais Bonnen, Office of the Attorney General of Texas, William (Bill) J. Cobb III, Attorney General's Office, Deputy I. Facts Atty. General for Civil Litigation, Austin, TX, for Petitioners Texas Department of Transportation. The chain of title contains conflicting records, so we first describe how the City, TxDOT, and API obtained their Analisa Figueroa, Charles V. Willette Jr., Willette and Guerra purported interests in the land. LLP, Brownsville, TX, for Petitioner The City of Edinburg.

Mark Edward Wilkins, Rolando Quintana, Wilkins & Wilkins, McAllen, TX, for Respondents A.P.I. Pipe and A. The 2003 Judgment Giving the City Ownership Supply, L.L.C. Herschell White originally owned the land, and the City Opinion brought a condemnation action so it could dig a drainage channel. As compensation for the land, the commissioners Justice WILLETT delivered the opinion of the Court. awarded, and White accepted, $207,249 (plus $17,000 for damage to the remainder of the property). The special

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commissioners' report described the interest conveyed as a “right-of-way” but also incorporated by reference the II. Proceedings Below City's original petition for condemnation, which described the interest sought as a “fee title.” No one objected to the special When TxDOT started digging, API filed an inverse- commissioners' award, and the trial court adopted it as the condemnation action against the City and TxDOT over the judgment of the court (the 2003 Judgment). 1 removed dirt. TxDOT and the City filed a plea to the jurisdiction, which the trial court denied. The court of appeals 1 See TEX. PROP.CODE § 21.061 (providing that affirmed, holding the 2004 Judgment was void but saying the if no party objects to the findings of the special record was unclear as to whether API had notice of the 2003 commissioners, the trial court “shall adopt the Judgment. 4 commissioners' findings as the judgment of the court”). 4 Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC, No. 13–07–221–CV, 2008 WL 99629, at *3–*5, 2008 B. The 2004 Judgment Nunc Pro Tex.App. LEXIS 276, at *8–*14 (Tex.App.-Corpus Tunc Giving API Ownership Christi Jan. 10, 2008, no pet.) (mem.op.). A year later, the same trial court entered a “Judgment Nunc Upon remand to the trial court, TxDOT and the City produced Pro Tunc” (the 2004 Judgment), which was agreed to by the evidence that the 2003 Judgment was indeed recorded in the City's and White's attorneys. A TxDOT employee apparently county registry. TxDOT and the City filed a second plea to also approved the 2004 Judgment by email. 2 the jurisdiction, arguing that, because the 2004 Judgment was void and API had notice of the 2003 Judgment, the City 2 held fee-simple title to the land, subject only to TxDOT's The record is unclear as to why the parties agreed to the easement. The trial court denied the second plea to the 2004 judgment, or why TxDOT, which did not yet have jurisdiction, and the court of appeals affirmed, concluding an interest in the property, would agree to the nunc pro tunc judgment. that API was a good-faith purchaser for value since the 2004 Judgment superseded the 2003 Judgment. 5 The 2004 Judgment purported to render the 2003 Judgment “null and void.” The 2004 Judgment states that the City's 5 328 S.W.3d 82, 90–92. interest in the land was a “right of way easement” obtained “for the purpose of opening, constructing and maintaining a permanent channel or drainage ease *166 ment....” Unlike the 2003 Judgment, the 2004 Judgment did not incorporate III. Discussion the special commissioners' report or the City's original [1] [2] Whether a court has jurisdiction is a matter of condemnation petition. Rather, it referred to the City's interest only as an easement, not fee-simple ownership. law we decide de novo. 6 Evidence can be introduced and considered at the plea to the jurisdiction stage if needed to determine jurisdiction. 7

C. Subsequent Title Transfers 6 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d Three months after the trial court signed the 2004 Judgment, 217, 226 (Tex.2004). White sold the ten acres and some surrounding property to 7 Id. at 227. 3 API. Both the 2003 Judgment and the 2004 Judgment were [3] [4] A trial court lacks jurisdiction and should grant a recorded in the county registry before API purchased the plea to the jurisdiction where a plaintiff “cannot establish a property. In 2005, the City granted TxDOT an easement to build a drainage ditch and to remove any excavated “stone, viable takings claim.” 8 Further, “[i]t is fundamental that, to earth, gravel or caliche.” recover under the constitutional takings clause, one must first demonstrate an ownership interest in the property taken.” 9 3 API paid $292,800 for approximately 34 acres, including Thus, if API does not own the disputed land, the takings claim the 9.869 acres at issue in this case. is not viable and the trial court lacks jurisdiction. Given that

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the dispositive question is whether API is the property owner, 15 Id. at 586. the trial court was correct to consider the 2003 and 2004 Here, the change was undeniably significant. The 2003 Judgments as extrinsic, undisputed evidence. Judgment granted a fee simple to the City, while the 2004 Judgment purported to turn the City's outright ownership 8 Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, into a mere easement. Again, the fact that the change was 491 (Tex.2012). significant is not fatal to the 2004 Judgment's nunc pro tunc 9 Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d status. However, TxDOT and the City produced evidence 637, 644 (Tex.2004). showing that the 2003 Judgment correctly reflected the For the reasons discussed below, we hold that API does not underlying judicial determination, 16 and no party produced any evidence indicating that the 2004 Judgment was merely own the land and cannot assert the good-faith purchaser 10 correcting a clerical error. That is, nothing suggests that *167 or equitable estoppel doctrines. We thus conclude that the 2003 Judgment really meant to convey to the City an the trial court should have granted the plea to the jurisdiction. easement rather than a fee simple. 10 We have jurisdiction over this interlocutory appeal under 16 There is circumstantial evidence that the 2003 Judgment Texas Government Code section 22.225(c) because of intended to award a fee simple rather than an easement. a conflict between the court of appeals' decision and a The condemnation award approved by the court in the decision of another court of appeals. See TEX. GOV'T 2003 Judgment provided compensation of over $207,000 CODE §§ 22.001(a)(2), .225(c). As explained below, for 10 acres in April 2003, whereas API purchased that the court of appeals' misapplication of the good-faith tract plus 20 more acres for approximately $90,000 more purchaser doctrine is inconsistent with Wall v. Lubbock, in August 2004. 52 Tex.Civ.App. 405, 118 S.W. 886, 888 (Tex.Civ.App.- Austin 1908, writ ref'd). Further, the trial court in this case was by law required to adopt the award of the special commissioners, who in turn granted the fee-simple title the City sought in its A. The 2004 Judgment in Favor of the City Was Void. condemnation petition. If parties do not timely object to a special commissioners' report, the trial court is required to [5] [6] [7] [8] [9] [10] A judgment nunc pro tunc enter “the [special] commissioners' findings as the judgment can correct a clerical error in the original judgment, but not a of the court.” 17 Objection is timely only if raised within judicial one. 11 An attempted nunc pro tunc judgment entered after the trial court loses plenary jurisdiction is void if it 20 days of the special commissioners' award. 18 Here, the parties point to no evidence of a timely objection. Indeed, corrects judicial rather than clerical errors. 12 “A clerical the 2003 Judgment indicated that no party objected to the error is one which does not result from judicial reasoning or award. Therefore, the trial court could “only perform its determination.” 13 Even a significant alteration to the original ministerial function and render judgment based upon the judgment may be accomplished through a judgment nunc pro commissioner's *168 award.” 19 The trial court did just 14 tunc so long as it merely corrects a clerical error. If “the that in the 2003 Judgment, awarding compensation for fee signed judgment inaccurately reflects the true decision of the simple title. Conversely, the 2004 Judgment exceeded the 15 court,” then “the error is clerical and may be corrected.” scope of this “ministerial function” by shrinking the interest awarded by the special commissioners from a fee simple to 11 Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986) (per an easement. As the special commissioners' award was not curiam). changed pursuant to timely objection, the 2004 Judgment was void. 12 Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973). 13 Andrews, 702 S.W.2d at 585. 17 TEX. PROP.CODE § 21.061.

14 See id. at 584–86 (using a nunc pro tunc judgment to add 18 Id. § 21.018. The time for making objections to the an easement to a deed; a prior court order had required special commissioners' award is tolled if the parties are the easement, so exclusion of the easement was clearly not given proper notice of the special commissioners' a clerical mistake). award. John v. State, 826 S.W.2d 138, 141 n. 5

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(Tex.1992). However, there is no evidence here that there were any notice problems regarding the award. 22 Wall, 118 S.W. at 888. 19 John, 826 S.W.2d at 141 n. 5. See also Pearson v. State, Codified at Property Code section 13.001, the innocent- 159 Tex. 66, 315 S.W.2d 935, 938 (1958) (noting that purchaser doctrine is simply inapplicable here: if there are no objections to the special commissioners' award, “[n]o jurisdiction is conferred upon the court to A conveyance of real property or an do anything more than accept and adopt the [special interest in real property ... is void as commissioners'] award as its judgment, and this follows to ... a subsequent purchaser for a by operation of law and the ministerial act of the county valuable consideration without notice judge”). unless the instrument has been ... One more timing issue cuts against API: the expiration of proved and filed for record as required the trial court's plenary power. Such power usually lasts 30 by law. 23 20 days. The 2004 Judgment, though labeled a Judgment Nunc Pro Tunc, was undeniably a substantive alteration to 23 TEX. PROP.CODE § 13.001(a). the 2003 Judgment. However, the trial court's plenary power to make substantive alterations had expired 300–plus days By its terms, the statute protects purchasers from unrecorded property conveyances—covert, off-the-books transfers that before the 2004 Judgment was rendered. 21 leave buyers unaware of adverse interests. But one cannot be “innocent” of a recorded judgment, and here, API concedes 20 See TEX.R. CIV. P. 329b(d)–(f). it knew of the recorded 2003 Judgment before it purchased 21 Here, the 2004 Judgment was entered 351 days after the the property. 2003 Judgment. API essentially argues that the 2003 Judgment was Because the 2004 Judgment was void, it did not convey superseded by the 2004 Judgment because the latter purported anything to anyone. Instead, under the 2003 Judgment, the to nullify the former. But our caselaw does *169 not City continued to hold fee-simple title. White continued to support the idea that earlier instruments in a chain of title have no interest in the land, and API could not buy from White can be rendered meaningless by later instruments that are what White did not own. contradictory. 24 Instead, we refused the writ of error in a case that explicitly held that the innocent-purchaser doctrine cannot protect those who claim under a void deed. 25 Further, B. The Innocent–Purchaser and Equitable the consistent theme in our cases is that “[a] purchaser is Estoppel Doctrines Are Inapplicable. charged with knowledge of the provisions and contents of API urges that, even if the 2004 Judgment is void such that recorded instruments. Purchasers are also charged with notice White had no interest to convey, API should still prevail of the terms of deeds which form an essential link in their because it depended on the 2004 Judgment when it bought chain of ownership.” 26 That is, a purchaser is deemed to have the land from White. API presents two theories, neither notice of all recorded instruments, not just the most recent persuasive. one. Thirty years ago, we stated in Westland Oil Development Corp. v. Gulf Oil Corp.:

24 API does not argue, and we do not consider, whether 1. The Innocent–Purchaser Statute, by its Terms, Does not Apply to Recorded Judgments. the 2004 Judgment is a “correction instrument” under recently enacted sections 5.027–.031 of the Property [11] The court of appeals held that API was a good-faith Code. purchaser for value. However, we refused the writ of error in 25 Wall, 118 S.W. at 888. a case holding that this doctrine does not protect a purchaser whose chain of title includes a void deed: “One holding 26 Cooksey v. Sinder, 682 S.W.2d 252, 253 (Tex.1984) (per under a void title cannot claim protection as an innocent curiam). purchaser.” 22

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otherwise as against those who have purchased in [A]ny description, recital of fact, or reference to other good faith in reliance thereon. documents puts the purchaser upon inquiry, and he is Id. at 675 (emphases added). bound to follow up this inquiry, step by step, from one discovery to another and from one instrument to another, until the whole series of title deeds is exhausted and a *170 2. API Cannot Prevail on Equitable complete knowledge of all the matters referred to and Estoppel, Which Is Inapplicable Against the Government on These Facts. affecting the estate is obtained. 27 27 637 S.W.2d 903, 908 (Tex.1982) (citations and [12] API argues that TxDOT's acquiescence to the 2004 quotations omitted) (emphases in original). Judgment bars it from objecting now to what it accepted then. In other words, API, constructively and actually aware of the While the argument has a certain force—purchasers should recorded 2003 Judgment, was responsible for squaring it with be able to rely upon facially valid judgments—this argument the contradictory 2004 Judgment. goes to equitable estoppel, a doctrine inapplicable against the government in this case. Slaughter v. Qualls, 28 on which the court of appeals [13] For estoppel to apply against the government, two relied, is not to the contrary. Slaughter suggests that a requirements must exist: (1) “the circumstances [must] recorded but void foreclosure sale could protect a subsequent clearly demand [estoppel's] application to prevent manifest good-faith purchaser. 29 However, the statement was dicta injustice,” 32 and (2) no governmental function can be because the subsequent purchaser's claim was not before impaired. 33 Neither requirement exists here. the Court. 30 In any event, the Slaughter dicta suggests that such purchasers merit protection under equitable estoppel 32 City of White Settlement v. Super Wash, Inc., 198 S.W.3d principles (describing a contrary result as “inequitable” 31 ) 770, 774 (Tex.2006) (quotations omitted). and not under the innocent-purchaser doctrine codified in the Property Code. Section 13.001 defines the elements of 33 Id. at 776–78. innocent-purchaser status for all cases, and courts may not As to the first requirement, we have applied estoppel to disregard or rewrite the statute when they believe straight-up prevent manifest injustice if, “officials acted deliberately application would be inequitable. The statute is categorical to induce a party to act in a way that benefitted the and makes no case-by-case exceptions: A purchaser with notice of an adverse interest cannot claim innocent-purchaser [government].” 34 Here, no evidence suggests deliberate status. inducement (as opposed to mistaken acquiescence) by TxDOT or the City, or that they benefitted when the City's fee 28 title was erroneously relegated to a mere easement. 35 (White 139 Tex. 340, 162 S.W.2d 671 (1942). benefitted handsomely, though, being paid twice for fee title 29 Id. at 675. to the same property.) This case stands in stark contrast to two 30 cases where we have held the government estopped—cases Id. at 674. where the government stalled private citizens from providing 31 That is, Slaughter says (in its explanation of its dicta): proper notice of claims until after the notice deadline had It is true that under circumstances such as we passed. 36 have here, those who purchased interests in or took liens on the land in good faith from [the purchaser 34 Id. at 775. of a deed voided by a wrongful foreclosure sale] acquired good title as against [the debtor who had 35 Apparently for the first time, API argued at oral argument originally executed the deed of trust]; but this is before this Court that TxDOT and the City did receive so not on the theory that the title actually passed, a benefit from their interest being merely an easement. but rather on the theory that [the debtor], by the API alleges that it let the government use other portions execution of the deed of trust, made it possible for of API's property, which API thought was required so the trustee to create the appearance of good title in that the government could make reasonable use of its [the purchaser at the foreclosure sale], and it would purported easement. However, we find this argument be inequitable to permit [the debtor] now to show

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unavailing. First, we note that this last-minute allegation of drainage ditches was a “quasi-judicial function[ ] of the government's benefit from the easement is not subject to governmental immunity,” whereas “the acts preserved for our review. TEX.R.APP. P. 33.1(a). of constructing and maintaining a storm sewer are Further, this last-minute allegation is not even enough to proprietary at common law”). The Texas Tort Claims lead us to remand to allow API to amend its jurisdictional Act also classifies governmental acts related to “sanitary allegations. Any purported benefit to TxDOT and the and storm sewers” as “governmental functions.” TEX. City is minimal compared to the substantial loss to the CIV. PRAC. & REM.CODE § 101.0215(9). While this government for giving up its right to fee-simple title. This legislative interpretation of “governmental functions” is purported benefit is “simply too attenuated to establish binding only in the context of the Tort Claims Act, we grounds for equitable relief.” Super Wash, 198 S.W.3d at have previously found that “the statute is helpful” in our 775. Finally, availability of “alternative remedies weighs interpretation of whether an activity is a “governmental strongly against” estoppel against the government, id., function.” Super Wash, 198 S.W.3d at 776–77. and API may well have other remedies available for the 39 If we found that the government was estopped, the government's alleged wrongful use of API's surrounding property in digging the ditch. government would have only a few options for removing dirt from the property, such as paying API to remove the 36 Super Wash, 198 S.W.3d at 774–76 (explaining the dirt, relying on API to remove the dirt, or obtaining API's significance of the only two cases where we have applied consent to let the government dump the dirt on API's estoppel against the government, Roberts v. Haltom City, surrounding land. Any of these options could impair 543 S.W.2d 75 (Tex.1976) and City of San Antonio v. plans to expand or improve the ditches by impeding the Schautteet, 706 S.W.2d 103 (Tex.1986)). dirt-removal process. We have also held that the fact that a governmental error was “discoverable” militates against applying estoppel. 37 IV. Conclusion The error here was discoverable because API could have examined the conflicting judgments and seen that the 2004 The 2004 Judgment was void. The pleadings and evidence Judgment was issued in error. Red flags were plentiful: (1) establish that API holds no interest in the land and thus the 2004 Judgment was styled a nunc pro tunc even though it “cannot establish a viable takings claim,” 40 meaning the trial made a judicial change, not a clerical one; (2) it was issued court lacked jurisdiction. 41 We reverse the court of appeals' long after the 2003 Judgment; (3) it nowhere mentioned judgment and dismiss the case. the unobjected-to special commissioners' award. We thus conclude that the manifest-injustice requirement for applying 40 Hearts Bluff Game Ranch, 381 S.W.3d at 491. estoppel against the government is not satisfied. 41 Id. at 491–92. 37 Super Wash, 198 S.W.3d at 775. *171 The second requirement—that there is no impairment Justice LEHRMANN filed a concurring opinion, in which to a governmental function—is also absent. Designing and Justice GUZMAN joined. planning a drainage ditch is a governmental function, 38 and applying estoppel here would impair that governmental function. If TxDOT and the City are estopped, their ability Justice LEHRMANN, joined by Justice GUZMAN, to manage the drainage project would have to accommodate concurring. API's ownership of the land, complicating the government's I join the Court's opinion because I agree that the 2004 Judgment, which was issued after the expiration of the trial ability to carry out its project. 39 The land was purchased court's plenary power, makes a judicial change to the 2003 through eminent domain for the precise purpose of digging Judgment and is therefore void. I write separately to clarify a drainage ditch, and restricting the government's ability to why I agree. freely dig on the land burdens that undisputed governmental function. As the Court notes, “a significant alteration to the original judgment may be accomplished through a judgment nunc pro 38 City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex.1997) tunc so long as it merely corrects a clerical error.” 397 S.W.3d (holding that, under common law, “design and planning” at 167 (citing Andrews v. Koch, 702 S.W.2d 584, 584–86

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(Tex.1986) (per curiam)). Indeed, clerical errors frequently the City sought a decree “vesting in [the City] a right- concern matters of substance; they are simply errors “made of-way ... more fully described in [the City]'s [p]etition.” in entering final judgment” and not “in rendering a final The condemnation petition, in the paragraph setting out judgment.” Escobar v. Escobar, 711 S.W.2d 230, 231 the purpose for the action, alleges that the land is sought (Tex.1986). Thus, the fact that the change made in the 2004 for the purpose of “laying out, opening, constructing, Judgment—which awards the City an easement as opposed reconstructing, maintaining, and operating ... a certain right- to the fee simple interest awarded in the 2003 Judgment— of-way,” specifically the U.S. Highway 281 Drainage outfall is undeniably significant has no bearing on the validity of ditches project. the nunc pro tunc judgment. Rather, the change was invalid because the 2003 Judgment correctly reflects the true decision However, such language does not call into question the effect of the court, and the 2004 Judgment therefore improperly of the 2003 Judgment. The term “right-of-way,” used alone, makes a judicial *172 change beyond the expiration of the may mean either a “right of passage” over a parcel of land or court's plenary power such that the 2004 Judgment is void. the parcel of land itself that “is to be used as a right of way.” Tex. Elec. Ry. Co. v. Neale, 151 Tex. 526, 252 S.W.2d 451, In many cases, depending on the state of the record, it 454 (1952); see also Lakeside Launches, Inc. v. Austin Yacht may be difficult for an appellate court to discern which Club, Inc., 750 S.W.2d 868, 871 (Tex.App.-Austin 1988, writ of two conflicting judgments accurately “reflects the true denied). There is no indication that the condemnation petition, decision of the [trial] court,” 397 S.W.3d at 167 (quoting the special commissioners' award, or the 2003 Judgment used Andrews, 702 S.W.2d at 586) (internal quotation marks the term “right-of-way” synonymously with an easement or omitted), and, in turn, whether a judgment nunc pro tunc is right of passage; rather, it was used to denote the property valid. However, this case does not present such a dilemma. itself. The evidence establishing the fee simple nature of the conveyance reflected in the 2003 Judgment is conclusive. Further, the City's agreement with the issuance and recording In that judgment, the trial court ordered that the special of the 2004 Judgment nunc pro tunc, while potentially commissioners' award “is hereby made[ ] the judgment of relevant to an equitable claim, does not call into question the this [c]ourt.” In turn, the special commissioners “award[ed] true decision of the trial court in entering the 2003 Judgment. to [the City] all rights described and prayed for in [the City]'s At that time, the trial court had before it the City's request for Original Statement and Petition for Condemnation.” And the a judgment for “fee title” in the property and the unobjected- City's condemnation petition requested “a final judgment of to special commissioners' award, which awarded all rights condemnation vesting in the City of Edinburg the fee title prayed for in the petition. Again, because the 2003 Judgment to said land and the rights therein.” Further, as noted by adopted the award as the judgment of the *173 court, it the Court, the trial court in this case essentially conducted is clear that the 2003 Judgment awarded fee title to the a ministerial duty in entering judgment on the special City. Therefore, the 2004 Judgment purporting to award an commissioners' findings, to which no one had objected. 397 easement, even if the City agreed to it, goes beyond the S.W.3d at 167–68. In light of this evidence, there is no correction of a clerical error and is void. question that the “true decision of the court” was to award fee simple title. Thus, the 2004 Judgment's award of an easement It bears repeating that the invalidity of the 2004 Judgment to the City did not merely correct a clerical error and could is not evident from the fact that the two judgments are not be accomplished through a judgment nunc pro tunc. facially in conflict, which in and of itself does not raise suspicion. In reality, most nunc pro tunc judgments conflict API contends the use of the term “right-of-way” in the substantively with the underlying judgments they are entered City's condemnation petition and the 2003 Judgment renders to correct. The nunc pro tunc judgment that merely corrects a it unclear whether the 2003 Judgment was awarding misspelled word or a grammatical error is an anomaly. After fee simple title or an easement. For example, the 2003 all, reasonable parties do not generally file lawsuits to correct Judgment awards the City “title (right of way) described trivial mistakes such as missing commas or misspelled words. in attached Exhibit ‘A’ [the special commissioners' award] Rather, reasonable litigants go to court to correct clerical and ‘B’ [condemnation petition],” and orders issuance of errors affecting substantive rights. A thorough review of this a writ of possession to allow the City to “enter upon record, however, conclusively shows that the true decision of said right-of-way.” The commissioners' award notes that

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the doctrine of equitable estoppel, which does not apply the trial court, as reflected in the 2003 Judgment, was to award against the government under the circumstances of this case. fee simple title to the City. Accordingly, I concur in the Court's opinion and judgment. Given that the 2004 Judgment was void, API could not acquire legal title from White because the City owned the All Citations land. I agree with the Court that any recovery against TxDOT and the City would necessitate application of 397 S.W.3d 162, 56 Tex. Sup. Ct. J. 449

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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