TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00507-CV
Ken Paxton, Attorney General of the State of Texas, Appellant
v.
Williamson County, Appellee
FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-22-007162, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING
MEMORANDUM OPINION
Attorney General Ken Paxton has filed a motion to dismiss this appeal and the
underlying case for want of jurisdiction and to vacate the underlying final judgment. See Tex. R.
App. P. 42.3(a). For the following reasons, we grant the motion.
BACKGROUND
After receiving requests pursuant to the Public Information Act (PIA) for election
records, including voted ballots and cast vote records, Williamson County wished to withhold
the records as confidential pursuant to Section 66.058 of the Texas Election Code for a period of
at least twenty-two months after the relevant election day and requested a ruling from the
Attorney General. See Tex. Elec. Code § 66.058 (addressing preservation period of twenty-two
months after election day of precinct election records); Tex. Gov’t Code § 552.301 (setting forth
procedure for governmental body to request decision from Attorney General when “it wishes to withhold from public disclosure”); see also generally Tex. Gov’t Code §§ 552.001–.353. The
Attorney General ruled that the requested information must be made available for public
inspection, and in response, Williamson County filed suit challenging the Attorney General’s
ruling. See Tex. Gov’t Code § 552.324 (allowing governmental body to seek declaratory relief
from compliance with Attorney General’s decision). In its final judgment, the trial court ruled in
Williamson County’s favor, finding that the records were not subject to disclosure under the PIA
until twenty-two months after the relevant election day. Attorney General Paxton then brought
this appeal.
During the pendency of the appeal, the Legislature amended Section 1.012 of the
Texas Election Code, effective Sept. 1, 2023, to add Subsections (f) and (g):
(f) Beginning on the first day after the date the final canvass of an election is completed, the general custodian of election records shall make available for public inspection election records that are: (1) images of voted ballots, if a county maintains images of voted ballots; or (2) cast vote records.
(g) Beginning on the 61st day after election day, the general custodian of election records shall make available for public inspection election records that are original voted ballots.
Tex. Elec. Code § 1.012.
MOTION TO DISMISS
Attorney General Paxton has filed a motion to dismiss based on the mootness
doctrine, which “applies to cases in which a justiciable controversy exists between the parties at
the time the case arose, but the live controversy ceases because of subsequent events.” Matthews
v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016) (citing Heckman v. Williamson
County, 369 S.W.3d 137, 162 (Tex. 2012)). The mootness doctrine “prevents courts from
2 rendering advisory opinions, which are outside the jurisdiction conferred by Texas Constitution
article II, section 1.” Id. (citing Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.
2000) (per curiam)). In the context of a PIA case, the controversy becomes moot when the
requestor receives the information at issue. See City of Georgetown v. Putnam, 646 S.W.3d 61,
72 (Tex. App.—El Paso 2022, pet. denied) (explaining that “[c]ourts have uniformly held that a
plaintiff’s claims for both injunctive and declaratory relief under the PIA are rendered moot
upon the governmental body’s release of the requested information to the plaintiff” and
collecting cases); Gates v. Texas Dep’t of Fam. & Protective Servs., No. 03-15-00631-CV,
2016 Tex. App. LEXIS 6598, at *13–14 (Tex. App.—Austin June 23, 2016, pet. denied) (mem.
op.) (concluding that claims brought under PIA were moot when governmental body produced
requested information).
Williamson County filed a response to the motion to dismiss. Without taking a
position on the motion, it raised concerns with vacating the underlying final judgment because
two of the four requests for public information that were at issue in the underlying suit remained
open and unfulfilled, potentially exposing Williamson County and its employees to liability
under Section 552.353 of the PIA if the final judgment is vacated. See Tex. Gov’t Code
§ 552.353 (addressing criminal offense of failure to provide access to public information).
Williamson County, however, agrees that as to the other two requests, it received new requests
for the same records from the same requestors and has released those records.
Attorney General Paxton has filed a reply with evidence showing that the
requestors of the two remaining requests that Williamson County raised concerns about in its
response have now withdrawn their requests. Because this evidence impacts this Court’s
jurisdiction, we take judicial notice of it. See Tex. R. Evid. 201 (addressing court’s authority to
3 judicially notice adjudicative facts); Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 759
(Tex. App.—Fort Worth 2010, pet. denied) (discussing mootness doctrine and explaining that
“[b]ecause ‘[m]ootness is a matter that ordinarily arises after the rendition of the judgment or
order appealed from,’ we can only determine whether Meeker’s appeal is moot by considering
evidence of matters occurring subsequent to the trial court’s summary judgment order”);
SEI Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 841 (Tex. App.—Dallas 1991, no
writ) (explaining that appellate courts may take judicial notice of facts outside record to
determine jurisdiction over appeal). Thus, the requestors in the underlying PIA case have now
either received the information that they requested or withdrawn their requests. It follows that
there is no longer a live controversy between the parties, and this appeal and the underlying case
are moot. See Matthews, 484 S.W.3d at 418; Putnam, 646 S.W.3d at 72.
In its response, Williamson County urges this Court not to vacate the final
judgment because “it provides clarity and guidance regarding public information act requests for
voted ballots and how to harmonize the Government Code and the public’s right to information
with the statutory protections of the Election Code” and argues that the underlying judgment
should not be vacated because the trial court’s ruling falls within the capable-of-repetition-but-
evading-review and public-interest exceptions to the mootness doctrine. See State v. City of
Austin, No. 03-20-00619-CV, 2021 Tex. App. LEXIS 2651, at *14–21 (Tex. App.—Austin
Apr. 8, 2021, no pet.) (mem.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00507-CV
Ken Paxton, Attorney General of the State of Texas, Appellant
v.
Williamson County, Appellee
FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-22-007162, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING
MEMORANDUM OPINION
Attorney General Ken Paxton has filed a motion to dismiss this appeal and the
underlying case for want of jurisdiction and to vacate the underlying final judgment. See Tex. R.
App. P. 42.3(a). For the following reasons, we grant the motion.
BACKGROUND
After receiving requests pursuant to the Public Information Act (PIA) for election
records, including voted ballots and cast vote records, Williamson County wished to withhold
the records as confidential pursuant to Section 66.058 of the Texas Election Code for a period of
at least twenty-two months after the relevant election day and requested a ruling from the
Attorney General. See Tex. Elec. Code § 66.058 (addressing preservation period of twenty-two
months after election day of precinct election records); Tex. Gov’t Code § 552.301 (setting forth
procedure for governmental body to request decision from Attorney General when “it wishes to withhold from public disclosure”); see also generally Tex. Gov’t Code §§ 552.001–.353. The
Attorney General ruled that the requested information must be made available for public
inspection, and in response, Williamson County filed suit challenging the Attorney General’s
ruling. See Tex. Gov’t Code § 552.324 (allowing governmental body to seek declaratory relief
from compliance with Attorney General’s decision). In its final judgment, the trial court ruled in
Williamson County’s favor, finding that the records were not subject to disclosure under the PIA
until twenty-two months after the relevant election day. Attorney General Paxton then brought
this appeal.
During the pendency of the appeal, the Legislature amended Section 1.012 of the
Texas Election Code, effective Sept. 1, 2023, to add Subsections (f) and (g):
(f) Beginning on the first day after the date the final canvass of an election is completed, the general custodian of election records shall make available for public inspection election records that are: (1) images of voted ballots, if a county maintains images of voted ballots; or (2) cast vote records.
(g) Beginning on the 61st day after election day, the general custodian of election records shall make available for public inspection election records that are original voted ballots.
Tex. Elec. Code § 1.012.
MOTION TO DISMISS
Attorney General Paxton has filed a motion to dismiss based on the mootness
doctrine, which “applies to cases in which a justiciable controversy exists between the parties at
the time the case arose, but the live controversy ceases because of subsequent events.” Matthews
v. Kountze Indep. Sch. Dist., 484 S.W.3d 416, 418 (Tex. 2016) (citing Heckman v. Williamson
County, 369 S.W.3d 137, 162 (Tex. 2012)). The mootness doctrine “prevents courts from
2 rendering advisory opinions, which are outside the jurisdiction conferred by Texas Constitution
article II, section 1.” Id. (citing Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.
2000) (per curiam)). In the context of a PIA case, the controversy becomes moot when the
requestor receives the information at issue. See City of Georgetown v. Putnam, 646 S.W.3d 61,
72 (Tex. App.—El Paso 2022, pet. denied) (explaining that “[c]ourts have uniformly held that a
plaintiff’s claims for both injunctive and declaratory relief under the PIA are rendered moot
upon the governmental body’s release of the requested information to the plaintiff” and
collecting cases); Gates v. Texas Dep’t of Fam. & Protective Servs., No. 03-15-00631-CV,
2016 Tex. App. LEXIS 6598, at *13–14 (Tex. App.—Austin June 23, 2016, pet. denied) (mem.
op.) (concluding that claims brought under PIA were moot when governmental body produced
requested information).
Williamson County filed a response to the motion to dismiss. Without taking a
position on the motion, it raised concerns with vacating the underlying final judgment because
two of the four requests for public information that were at issue in the underlying suit remained
open and unfulfilled, potentially exposing Williamson County and its employees to liability
under Section 552.353 of the PIA if the final judgment is vacated. See Tex. Gov’t Code
§ 552.353 (addressing criminal offense of failure to provide access to public information).
Williamson County, however, agrees that as to the other two requests, it received new requests
for the same records from the same requestors and has released those records.
Attorney General Paxton has filed a reply with evidence showing that the
requestors of the two remaining requests that Williamson County raised concerns about in its
response have now withdrawn their requests. Because this evidence impacts this Court’s
jurisdiction, we take judicial notice of it. See Tex. R. Evid. 201 (addressing court’s authority to
3 judicially notice adjudicative facts); Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 759
(Tex. App.—Fort Worth 2010, pet. denied) (discussing mootness doctrine and explaining that
“[b]ecause ‘[m]ootness is a matter that ordinarily arises after the rendition of the judgment or
order appealed from,’ we can only determine whether Meeker’s appeal is moot by considering
evidence of matters occurring subsequent to the trial court’s summary judgment order”);
SEI Bus. Sys., Inc. v. Bank One Tex., N.A., 803 S.W.2d 838, 841 (Tex. App.—Dallas 1991, no
writ) (explaining that appellate courts may take judicial notice of facts outside record to
determine jurisdiction over appeal). Thus, the requestors in the underlying PIA case have now
either received the information that they requested or withdrawn their requests. It follows that
there is no longer a live controversy between the parties, and this appeal and the underlying case
are moot. See Matthews, 484 S.W.3d at 418; Putnam, 646 S.W.3d at 72.
In its response, Williamson County urges this Court not to vacate the final
judgment because “it provides clarity and guidance regarding public information act requests for
voted ballots and how to harmonize the Government Code and the public’s right to information
with the statutory protections of the Election Code” and argues that the underlying judgment
should not be vacated because the trial court’s ruling falls within the capable-of-repetition-but-
evading-review and public-interest exceptions to the mootness doctrine. See State v. City of
Austin, No. 03-20-00619-CV, 2021 Tex. App. LEXIS 2651, at *14–21 (Tex. App.—Austin
Apr. 8, 2021, no pet.) (mem. op.) (discussing exceptions to mootness doctrine); Putnam,
646 S.W.3d at 73–74 (same).
Under the PIA, however, a requestor has a statutory right to obtain judicial
review, including mandamus relief, as to any records that are improperly withheld in the future.
See Tex. Gov’t Code § 552.321 (allowing requestor to file suit for writ of mandamus against
4 governmental body to make information available for public inspection). Further, the exceptions
to the mootness doctrine would only allow this Court to reach the merits of the case that was
before the trial court, which was under the prior law as to the specific requests at issue, and not
some future hypothetical case under the amendments to Section 1.012 of the Texas Election
Code. See Matthews, 484 S.W.3d at 418 (explaining that rendering advisory opinions is outside
court’s jurisdiction).
Moreover, Williamson County has not cited, and we have not found, authority
that would allow this Court to dismiss the appeal based on the mootness doctrine but leave the
final judgment in place based on exceptions to the mootness doctrine. See Heckman,
369 S.W.3d at 162 (“If a case is or becomes moot, the court must vacate any order or judgment
previously issued and dismiss the case for want of jurisdiction.”); Texas Quarter Horse Ass’n
v. American Legion Dep’t of Tex., 496 S.W.3d 175, 182–84 (Tex. App.—Austin 2016, no pet.)
(explaining policy reasons behind vacating trial court’s judgment when case becomes moot on
appeal, including that “dismissing only the appeal in those circumstances may be unfair to the
appellant because it causes the lower-court judgment to become final and preclusive—effectively
affirming it—without affording the appellant the opportunity to be heard on the merits” and
that “dismissing the appeal in those circumstances achieves the effect of an affirmance in a
moot case”).
CONCLUSION
For these reasons, we grant Attorney General Paxton’s motion to dismiss, vacate
the trial court’s final judgment, and dismiss this appeal and the underlying case for want
of jurisdiction.
5 __________________________________________ Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Smith and Theofanis
Vacated and Dismissed for Want of Jurisdiction
Filed: January 11, 2024