Opinion issued August 27, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00146-CV ——————————— MICHAEL FALLON, M.D., Appellant V. THE UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER AND CRAIG HENDERSON, AS OFFICER FOR PUBLIC INFORMATION FOR THE UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER, Appellees
On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2016-10013
OPINION ON EN BANC RECONSIDERATION
Appellees, The University of Texas MD Anderson Cancer Center and Craig
Henderson, as Officer for Public Information for The University of Texas MD
Anderson Cancer Center (collectively, the “Cancer Center”), have filed a motion for en banc reconsideration of this Court’s December 20, 2018 memorandum opinion
and judgment. See TEX. R. APP. P. 49.7. The Court has unanimously voted to grant
en banc reconsideration. See TEX. R. APP. P. 41.2, 49.7. We withdraw our
memorandum opinion and judgment of December 20, 2018, and we substitute this
opinion and judgment in their stead.
Appellant, Michael Fallon, M.D., challenges the trial court’s orders denying
him summary judgment and granting the plea to the jurisdiction of the Cancer Center
in Fallon’s suit for a writ of mandamus and a declaratory judgment.1 In four issues,
Fallon contends that the trial court erred in denying him summary judgment,
granting the Cancer Center’s plea to the jurisdiction, and dismissing his
declaratory-judgment claim.
We affirm in part and reverse in part.
Background
In his third amended petition, Fallon alleges that he is an individual residing
in New York and the Cancer Center is a “governmental body” of the State of Texas.2
In October 2015, Fallon, pursuant to the Texas Public Information Act (“PIA”), 3
1 See TEX. GOV’T CODE ANN. § 552.321 (“Suit for Writ of Mandamus”); TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011 (“Uniform Declaratory Judgments Act” (the “DJA”)). 2 See TEX. GOV’T CODE ANN. § 552.003(1). 3 See id. §§ 552.001–.353.
2 served the Cancer Center with a public information request, seeking nine categories
of information. In the first three categories of information (items 1-3), he sought
certain call records of the Cancer Center. In the remaining six categories (items 4-9),
he sought the following information from the Cancer Center:
4) All emails, faxes or other electronic communications to or from the [twelve listed] individuals regarding the MDA affiliation process with Lourdes Hospital, Binghamton NY, the MD Anderson certification actions concerning Michael Fallon MD and any other evaluation of Dr. Michael Fallon for the date range 9/1/2013 to the present[.]
5) The MD Anderson Physician[s] Network “Radiation Oncology Provider Quality Assessment – Provisional” reports for the Radiation Oncologists certified by MD Anderson at the [fourteen listed] institutions with patient, physician, and institution identifiers redacted.
6) Gross affiliation revenue received by MDA from the [fourteen listed] institutions.
7) Agreement and engagement documentation between MDA and the [seven listed] consultants.
8) Fees paid to the [seven listed] consultants[.]
9) Affiliation and discovery/due diligence agreement documentation between MDA and Our Lady of Lourdes Memorial Hospital, Binghamton, NY[.]
In November 2015, Fallon clarified his request. For instance, Fallon made clear that
he did not “seek any patient, healthcare provider, or institutional identifiers” in his
public information request and that the physicians listed in item 5 referred to certain
radiation oncologists listed on the Cancer Center’s website. 3 In February 2016, the Cancer Center produced call records in response to the
first three categories of information (items 1-3) that Fallon had requested. And it
informed Fallon that it did not maintain information responsive to the remaining six
categories of information (items 4-9), but it noted that such information might be
maintained by a “separate legal entity,” i.e., MD Anderson Physicians Network (the
“Physicians Network”). (Internal quotations omitted.)
Because the Cancer Center refused to produce information responsive to items
4-9, Fallon seeks a writ of mandamus to compel the Cancer Center to produce
information responsive to his public information request.4 According to Fallon, even
if the information he seeks is maintained by the Physicians Network, such
information is still “public information” that the Cancer Center must provide under
the PIA.5 Fallon also seeks a declaration that the remaining information that he has
requested from the Cancer Center constitutes “public information” under the PIA.6
The Cancer Center answered, generally denying the allegations and asserting
“sovereign immunity as a defense.”
Fallon then filed a matter-of-law summary-judgment motion, arguing that the
information he seeks from the Cancer Center, pursuant to the PIA, constitutes
4 See id. § 552.321 (“Suit for Writ of Mandamus”). 5 See id. § 552.002(a) (defining “public information” (internal quotations omitted)). 6 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011.
4 “public information” as a matter of law because it is “written, produced, collected,
assembled, or maintained under a law or ordinance or in connection with the
transaction of official business” for a “governmental body,” i.e., the Cancer Center,
and the Cancer Center “has a right of access to the information.”7 (Internal
quotations omitted.) Fallon attached exhibits to his motion, including the Physicians
Network’s Amended and Restated Certificate of Formation and a “Form 990” tax
return for MD Anderson Services Corporation.
The Cancer Center filed a response and a plea to the jurisdiction, arguing that
the trial court lacks subject-matter jurisdiction because the PIA only provides “a
limited waiver of sovereign immunity” where “a governmental body . . . has
refused . . . to supply public information”; the Cancer Center did not “refuse to
supply public information,” rather it “released to Fallon all of the public information
responsive to his” public information request; and any information that the Cancer
Center did not produce does not constitute “public information” under the PIA as it
belongs to the Physicians Network, which is a “separate legal entity” and not a
“governmental body” under the PIA, the Cancer Center does not own the
information, does not have a right of access to the information, and does not spend
or contribute public money for the purpose of writing, producing, collecting,
assembling, or maintaining the information, and the information that Fallon seeks
7 See TEX. GOV’T CODE ANN. § 552.002(a)(2).
5 does not pertain to the official business of the Cancer Center.8 In regard to Fallon’s
summary-judgment motion, the Cancer Center reiterated that it had not refused to
supply Fallon with information responsive to his public information request, the
remaining information that Fallon seeks is not “public information,” and the Cancer
Center does not have a “right of access to the information.” The Cancer Center
attached exhibits to its response and plea, including the affidavit of its Vice President
of Global Business Development, Amy Hay, and an open records letter ruling of the
Texas Attorney General related to the Physicians Network.9
In her affidavit, Hay testified, in relevant part:
• “[The Cancer Center] is an agency of the State of Texas and institution of The University of Texas System (‘System’).”
• “[The Physicians Network] is a private, Texas nonprofit corporation.”
• “[The Physicians Network] is a separate legal entity from [the Cancer Center] with an independent certificate of formation.”
• “[The Physicians Network] is governed by an independent board of directors comprised entirely of physicians that is responsible for the direction and management of the affairs of the corporation.”
• “A primary purpose of [the Physicians Network] is to provide quality improvement and best practices management services to qualified community hospitals through [the Physicians
8 See id. 9 See Tex. Att’y Gen. OR2016-22964.
6 Network’s] Certified Member Program (‘Certified Member Program’).”
• “Under the Certified Member Program, [the Physicians Network] contracts and affiliates directly with community hospitals (‘Certified Members’) which pay [the Physicians Network] a fee as compensation for the services [the Physicians Network] provides [to] such hospitals under the[] contracts.”
• “[The Cancer Center] is not a party to [the Physicians Network’s] contracts with Certified Members, and [the Cancer Center] does not receive fees for the services [the Physicians Network] provides Certified Members or affiliation revenue from [the Physicians Network’s] affiliations with Certified Members.”
• “[The Cancer Center] does not have an affiliation process or affiliation and discovery/due diligence agreement with Our Lady of Lourdes Memorial Hospital.”
• “[The Cancer Center] did not perform any certification actions or other evaluation of Dr. Michael Fallon.”
• “[The Cancer Center] has not received gross affiliation revenue from the institutions listed in item 5 of [Fallon’s public information request].”
• “[The Physicians Network] contracts directly with [the Cancer Center’s] faculty members who serve as consultants for [the Physicians Network] in providing services to Certified Members.”
• “[The Cancer Center] is not a party to any contracts between [the Physicians Network] and such consultants, and [the Cancer Center] does not pay or receive fees for the services such consultants provide [the Physicians Network] or Certified Members.”
7 • “[The Cancer Center] does not have consulting agreements with the individuals listed in item 7 of [Fallon’s public information request].”
• “[The Cancer Center] did not pay consulting fees to the consultants listed in item 7 of [Fallon’s public information request].”
In the open records letter ruling, the Texas Attorney General concluded that the
Physicians Network is not a “governmental body” and not subject to the PIA or its
disclosure requirements.10 (Internal quotations omitted.)
In response to the Cancer Center’s plea to the jurisdiction, Fallon asserted that
the trial court has subject-matter jurisdiction under the PIA and the DJA. Related to
the PIA, Fallon asserted that he is entitled to file a suit for a writ of mandamus to
compel a “governmental body,” i.e., the Cancer Center, to make requested “public
information” available when that “governmental body” has refused to do so.
According to Fallon, although the Cancer Center produced some information in
response to his public information request, it refused to produce information
responsive to items 4-9 of his request and such information, even if it is in the
possession of the Physicians Network, constitutes “public information” that the
10 See id. (determining Physicians Network not sustained by public funds and does not constitute “governmental body” under PIA (internal quotations omitted)).
8 Cancer Center must produce because the Cancer Center has a right of access to the
information.11
Before the trial court ruled on the Cancer Center’s plea to the jurisdiction and
Fallon’s summary-judgment motion, the Physicians Network filed a plea in
intervention, alleging that it is a non-profit corporation and not a “governmental
body” that is subject to the PIA or its disclosure requirements. According to the
Physicians Network, it is a separate and distinct legal entity from the Cancer Center
with its own board of directors and employees. The Cancer Center “does not direct
the business of [the] Physicians Network” and the Cancer Center does not have a
right of access to the Physicians Network’s “business records and/or other
documents and information that are related to [the] Physicians Network’s business
conducted with other third-party community hospitals.” The Physicians Network is
primarily focused on improving the quality of cancer care available to private
patients in community hospitals throughout the United States, and the vast majority
of its revenue comes from its contractual relationships with entities that are not the
Cancer Center and that are not governmental bodies. When the Physicians Network
“does business with [the] Cancer Center, it does so pursuant to quid pro quo
contractual arrangements.” (Emphasis omitted.)
11 See TEX. GOV’T CODE ANN. § 552.002(a)(2).
9 Further, according to the Physicians Network, it offers four general categories
of programs and services to its clients: (1) quality improvement affiliation
programs, including its Certified Member Program, (2) an Employer Contracting
program, (3) community oncology programs, and (4) strategic advisory and
management support services. The purpose of the Certified Member Program “is to
help community hospitals improve the quality of oncology care that they provide to
cancer patients in their respective communities.” As part of the Certified Member
Program, the Physicians Network enters into contracts with out-of-state community
hospitals and provides oncology quality improvement and best practices services
developed by the Physicians Network. These best practices services include “quality
evaluation, oncology disease management, quality management, and improvement
for oncology services, outcomes measurement and reporting, and peer to peer
consultation.”
Initially, a community hospital participates in a development phase and enters
into a development agreement with the Physicians Network which allows it “to
assess the quality of care provided by [the] hospitals and assist [the] hospitals in
meeting the requirements of” the Certified Member Program. Subsequently, the
community hospital enters into an affiliation agreement with the Physicians Network
and pays the Physicians Network a fee for the services that the Physicians Network
provides to the community hospital. The services provided by the Physicians
10 Network under the Certified Member Program are intended to benefit the
participating community hospitals and the cancer patients who receive care at those
hospitals. The Cancer Center is not a party to the development or affiliation
agreements or any other contracts that are part of the Certified Member Program.
Information relating to the Certified Member Program is not created and maintained
for the Cancer Center. And the Cancer Center does not have a right of access to
such information or the Physicians Network’s other documents and information
related to its business conducted with third-party community hospitals. According
to the Physicians Network, any documents related to the Certified Member Program
that Fallon seeks are not related to the services the Physicians Network provides to
the Cancer Center.
Under the Physicians Network’s Employer Contracting program the
Physicians Network provides “professional oncology services to enrollees in the
contracted employers’ health plans . . . through a provider network.” The Physicians
Network currently maintains employer contractors with two international
employers. The Physicians Network alleges that the information that Fallon seeks
in his public information request does not relate to its Employer Contracting
program.
Related to its community oncology programs, the Physicians Network
“employs approximately thirty (30) oncologists who provide direct care to patients
11 in five (5) satellite oncology centers,” “provides medical direction services and
physics support services for a gamma knife program operated at a community
hospital,” and “provides services with respect to radiation oncology centers that are
owned and operated by a private hospital system” in Albuquerque, New Mexico.
According to the Physicians Network, it provides the Cancer Center with some
services through its community oncology programs, but such services are provided
pursuant to a quid pro quo contract and the information that Fallon seeks in his public
information request does not relate to the Physicians Network’s community
oncology programs.
Finally, the Physicians Network “provides strategic advisory and management
support services to [the] Cancer Center pursuant to arm’s-length contractual
arrangements.” According to the Physicians Network, although it provides the
Cancer Center with some strategic advisory and management support services, such
services are provided pursuant to a quid pro quo contract and the information that
Fallon seeks in his public information request does not relate to the Physicians
Network’s strategic advisory and management support services.
Moreover, the Physicians Network explains in its plea in intervention that the
information that Fallon seeks in items 4-9 of his public information request does not
“relate to any work or services that [the] Physicians Network provide[s] to or for
[the] Cancer Center.” Rather, the information sought by Fallon relates to the
12 Physicians Network’s Certified Member Program, contracts between the Physicians
Network and third-party community hospitals, and services provided by the
Physicians Network to other third-party community hospitals. In other words, the
information sought by Fallon is not “public information” because it was created by
the Physicians Network, a non-governmental body. And the information was not
created and maintained for a “governmental body,” i.e., the Cancer Center, because
the information requested relates to the Physicians Network’s Certified Member
Program and contracts and services that the Physicians Network has provided to
third-party community hospitals “to improve the quality of care that they provide to
their cancer patients.” Still yet, even if the information that Fallon seeks is created
and maintained for the Cancer Center, the Cancer Center does not own the
information, have a right of access to the information, or contribute public funds for
the creation or maintenance of the information.12
The Physicians Network further opines that Fallon, through his public
information request, is attempting to obtain information responsive to items 4-9 to
use in a suit that he has filed against his former employer, Our Lady of Lourdes
Memorial Hospital (“Lourdes Hospital”), which is located in New York. According
12 Physicians Network also asserts that even if the information requested by Fallon constitutes “public information” under the PIA, such information is excepted from disclosure. See id. §§ 552.101–.159 (“Information Excepted from Required Disclosure”).
13 to the Physicians Network, Lourdes Hospital, several years ago, entered into a
Certified Member Program development agreement with the Physicians Network.
And under that agreement, the Physicians Network conducted a quality evaluation
of Lourdes Hospital’s oncology programs and providers through a medical peer
review. After Lourdes Hospital terminated its contract with Fallon, Fallon sued the
hospital, alleging that the medical peer review conducted by the Physicians Network
under its development agreement with Lourdes Hospital resulted in the termination
of his contract with the hospital.
After a hearing, the trial court granted the Cancer Center’s plea to the
jurisdiction, denied Fallon’s summary-judgment motion, and dismissed Fallon’s suit
for a writ of mandamus and a declaratory judgment. The Physicians Network then
non-suited its plea in intervention.
Public Information
In his second and third issues, Fallon argues that the trial court erred in
denying him summary judgment and granting the Cancer Center’s plea to the
jurisdiction because the Cancer Center, a “governmental body” under the PIA, has
refused to provide certain information that Fallon requested and the information
sought by Fallon in items 4-9 of his public information request constitutes “public
information” under the PIA.
14 Notably, in the trial court, Fallon, in his summary-judgment motion, and the
Cancer Center, in its plea to the jurisdiction, sought a matter-of-law judgment on the
same issue, i.e., whether the information requested by Fallon in items 4-9 of his
public information request constitutes “public information” under the PIA. See TEX.
GOV’T CODE ANN. § 552.002(a) (defining “public information” (internal quotations
omitted)). Because the plea-to-the-jurisdiction standard of review mirrors that of a
matter-of-law summary-judgment motion in the instant case, we will consider
Fallon’s second and third issues together, reviewing the trial court’s denial of
Fallon’s summary-judgment motion and its granting of the Cancer Center’s
jurisdictional plea under a de novo standard that applies to cross-motions for
summary judgment. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755,
771 (Tex. 2018); Morello v. Seaway Crude Pipeline Co., No.
01-16-00765-CV, --- S.W.3d ---, 2018 WL 2305541, at *7 (Tex. App.—Houston
[1st Dist.] May 22, 2018, pet. denied) (because jurisdictional plea and
summary-judgment motion were effectively cross-dispositive motions, appellate
court reviewed under de novo standard of review that applies to cross-motions for
summary judgment); see also Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex.,
253 S.W.3d 184, 192 (Tex. 2007) (de novo standard of review for cross-motions for
summary judgment).
15 On cross-motions for summary judgment, each party bears the burden of
establishing that he is entitled to judgment as a matter of law. Tarr v. Timberwood
Park Owners Ass’n, 556 S.W.3d 274, 278–79 (Tex. 2018). In our review of such
cross-motions, we review the summary-judgment evidence presented by each party,
determine all issues presented, and render the judgment that the trial court should
have rendered. Id.; Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136
S.W.3d 643, 648 (Tex. 2004). If we determine that a fact issue precludes summary
judgment for either party, we remand the cause for trial. See Univ. of Tex. Health
Sci. Ctr. at Hous. v. Big Train Carpet of El Campo, Inc., 739 S.W.2d 792, 792 (Tex.
1987).
To prevail on a matter-of-law summary-judgment motion, a movant has the
burden of establishing that he is entitled to judgment as a matter of law and there is
no genuine issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900
S.W.2d 339, 341 (Tex. 1995). When a plaintiff moves for summary judgment on
his own claim, he must conclusively prove all essential elements of his cause of
action. Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). When a
defendant moves for summary judgment, it must either (1) disprove at least one
essential element of the plaintiff’s cause of action or (2) plead and conclusively
establish each essential element of its affirmative defense, thereby defeating the
plaintiff’s cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex.,
16 N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
When deciding whether there is a disputed, material fact issue precluding summary
judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Every reasonable inference
must be indulged in favor of the non-movant and any doubts must be resolved in the
non-movant’s favor. Id. at 549.
The purpose of the PIA is to provide the public with “complete information
about the affairs of government and the official acts of public officials and
employees.” TEX. GOV’T CODE ANN. § 552.001(a); Jackson v. State Office of Admin.
Hearings, 351 S.W.3d 290, 293 (Tex. 2011) (internal quotations omitted); see also
Paxton v. City of Dall., 509 S.W.3d 247, 251 (Tex. 2017) (fundamental precept of
PIA is that “[t]he people, in delegating authority, do not give their public servants
the right to decide what is good for the people to know and what is not good for them
to know” (alteration in original) (internal quotations omitted)). Under the PIA, a
“governmental body” must promptly produce “public information” on request unless
an exception from disclosure applies and is timely asserted. See TEX. GOV’T CODE
ANN. §§ 552.101–.159, 552.221; see also Paxton, 509 S.W.3d at 251; CareFlite v.
Rural Hill Emergency Med. Servs., Inc., 418 S.W.3d 132, 136 (Tex. App.—Eastland
2012, no pet.) (under PIA, “governmental body” required to disclose certain
information when requested).
17 “[P]ublic information” is defined as follows:
information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:
(1) by a governmental body;
(2) for a governmental body and the governmental body:
(A) owns the information;
(B) has a right of access to the information; or
(C) spends or contributes public money for the purpose of writing, producing, collecting, assembling, or maintaining the information; or
(3) by an individual officer or employee of a governmental body in the officer’s or employee’s official capacity and the information pertains to official business of the governmental body.
TEX. GOV’T CODE ANN. § 552.002(a) (internal quotations omitted).13 Whether
requested information is “public information” under the PIA is a question of law.
See City of Garland v. Dall. Morning News, 22 S.W.3d 351, 357 (Tex. 2000); Harris
Cty. Appraisal Dist. v. Integrity Title Co., 483 S.W.3d 62, 69 (Tex. App.—Houston
[1st Dist.] 2015, pet. denied). The Texas Legislature has specified that the PIA “shall
be liberally construed in favor of granting a request for information.” TEX. GOV’T
13 The PIA contains a non-exclusive list of categories of “public information” as well. See id. § 552.022.
18 CODE ANN. § 552.001(b); see also id. § 552.001(a); Greater Hous. P’ship v. Paxton,
468 S.W.3d 51, 58 (Tex. 2015).
Texas Government Code section 552.321 waives sovereign immunity when,
as here, a “governmental body” fails to disclose requested information because it
does not consider the information to be “public information.” See TEX. GOV’T CODE
ANN. § 552.321; see also Nehls v. Hartman Newspapers, LP, 522 S.W.3d 23, 29
(Tex. App.—Houston [1st Dist.] 2017, pet. denied). Under such circumstances, a
requestor may enforce his statutory right by suing for a writ of mandamus to compel
the “governmental body” “to make [the requested] information available.” TEX.
GOV’T CODE ANN. § 552.321(a); Nehls, 522 S.W.3d at 29; Cooper v. Circle Ten
Council Boy Scouts of Am., 254 S.W.3d 689, 694 (Tex. App.—Dallas 2008, no pet.).
In the mandamus proceeding, the “governmental body” has the burden to prove that
the requested information is not “public information.” Adkisson v. Paxton, 459
S.W.3d 761, 772 (Tex. App.—Austin 2015, no pet.).
Here, it is undisputed that Fallon, in items 4-9 of his public information
request, seeks information related to the Physicians Network’s Certified Member
Program. And it is undisputed that the Cancer Center does not possess the
responsive information. However, as Fallon explains, in items 4-9, he does not seek
information possessed by the Cancer Center. Rather, he seeks information possessed
19 by the Physicians Network.14 In other words, he does not limit his public
information request to “public information” strictly in the possession of the Cancer
Center. Specifically, in items 4-9 of his public information request, Fallon seeks:
(4) “electronic communications” regarding the Physicians Network’s “affiliation
process” with Lourdes Hospital and any “evaluation[s]” of Fallon; (5) the Physicians
Network’s “reports” for certified “[r]adiation [o]ncologists” at certain Certified
Member community hospitals; (6) gross affiliation revenue received by the
Physicians Network from certain Certified Member community hospitals;
(7) agreement and engagement documentation between the Physicians Network and
14 We note the Cancer Center asserts that Fallon’s public information request does not actually seek information possessed by the Physicians Network; instead, the request seeks information possessed by the Cancer Center. And the Cancer Center insists that it produced all responsive information in its possession. According to the Cancer Center, Fallon could have served the Cancer Center with requests seeking information possessed by the Physicians Network, but he did not do so. Thus, the trial court properly dismissed Fallon’s suit for a writ of mandamus because the Cancer Center never “refuse[d] to supply public information” in response to Fallon’s public information request. See id. § 552.321(a). To the extent that the wording of Fallon’s public information request created any confusion, Fallon later clarified—in his amended petitions, his summary-judgment motion, and his response to the Cancer Center’s plea to the jurisdiction—that he seeks information possessed by the Physicians Network. Throughout most of this case, the Cancer Center has been aware that Fallon seeks information in the possession of the Physicians Network and that it is Fallon’s position that, although the information sought is in the Physicians Network’s possession, the Cancer Center must produce such information because the Cancer Center has a “right of access” to it. See id. § 552.002(a) (defining “[p]ublic information” (internal quotations omitted)). Indeed, in its plea to the jurisdiction, the Cancer Center responded to Fallon’s argument that the Cancer Center has a right of access to the information that Fallon seeks, denying that it has any such a right and further arguing that, even if it did, the information still would not constitute “public information” under PIA.
20 certain listed consultants; (8) the fees paid to such consultants; and (9) affiliation and
“discovery/due diligence agreement documentation” between the Physicians
Network and Lourdes Hospital.
A. Fallon’s Summary-Judgment Motion
In his third issue, Fallon argues that the trial court erred in denying him
summary judgment because the information that he seeks in items 4-9 of his public
information request to the Cancer Center, although in the possession of the
Physicians Network, constitutes “public information” as a matter of law under the
PIA. See TEX. GOV’T CODE ANN. § 552.002(a).
As previously explained, under the PIA, information still constitutes “public
information” if it is “written, produced, collected, assembled, or maintained under a
law or ordinance or in connection with the transaction of official business . . . for a
governmental body and the governmental body . . . has a right of access to the
information.” Id. § 552.002(a)(2)(B) (internal quotations omitted). Thus, to have
prevailed on his summary-judgment motion, Fallon had to prove, as a matter of law,
that: (1) the information possessed by the Physicians Network that he seeks in
response to items 4-9 of his public information request is “in connection with the
transaction of official business” of the Cancer Center, (2) the information is written,
produced, collected, assembled, or maintained “for” the Cancer Center, and (3) the
Cancer Center has a “right of access to the information.” Id.
21 Notably, in his summary-judgment motion, Fallon only asserted that the
Cancer Center has a “right of access to the information.” See id. He did not address
whether the information is “in connection with the transaction of official business”
of the Cancer Center and whether the information is written, produced, collected,
assembled, or maintained “for” the Cancer Center. See Rhône–Poulenc, 997 S.W.2d
at 223 (when plaintiff moves for summary judgment on his own claim, he must
conclusively prove all essential elements of his cause of action); see also Escobedo
v. MO-VAC Serv., Co., No. 13-16-00435-CV, 2018 WL 3599195, at *4 (Tex. App.—
Corpus Christi–Edinburg July 27, 2018, pet. denied) (mem. op.) (trial court
improperly granted summary judgment where party did not address each element of
affirmative defense in summary-judgment motion).
Because Fallon did not address in his summary-judgment motion or establish
in the summary-judgment proceeding below, whether the information possessed by
the Physicians Network that he seeks in response to items 4-9 of his public
information request is “in connection with the transaction of official business” of the
Cancer Center or that the information he seeks is written, produced, collected,
assembled, or maintained “for” the Cancer Center, he did not conclusively prove that
the information he seeks is “public information” under the PIA. See TEX. GOV’T
CODE ANN. § 552.002(a)(2)(B) (internal quotations omitted). Accordingly, we hold
that the trial court did not err in denying him summary judgment.
22 We overrule Fallon’s third issue.
B. Cancer Center’s Plea to the Jurisdiction
In his second issue, Fallon argues that the trial court erred in granting the
Cancer Center’s plea to the jurisdiction because the Cancer Center did not prove that
the information that Fallon seeks in items 4-9 of his public information request,
although in the possession of the Physicians Network, is not “public information” as
a matter of law under the PIA. See id.
We first consider whether the Cancer Center proved, as a matter of law, that
the information possessed by the Physicians Network that Fallon seeks is not “in
connection with the transaction of official business” of the Cancer Center. See id.
Under the PIA, “[i]nformation is in connection with the transaction of official
business if the information is created by, transmitted to, received by, or maintained
by an officer or employee of the governmental body in the officer’s or employee’s
official capacity, or a person or entity performing official business or a governmental
function on behalf of a governmental body, and pertains to official business of the
governmental body.” Id. § 552.002(a-1). “Official business means any matter over
which a governmental body has any authority, administrative duties, or advisory
duties.” Id. § 552.003(2-a) (internal quotations omitted).
The Cancer Center argues that the information responsive to items 4-9 of
Fallon’s public information request that is in the possession of the Physicians
23 Network is not “in connection with the transaction of official business” of the Cancer
Center because: (1) the Physicians Network is a “separate legal entity” from the
Cancer Center, (2) the Physicians Network is not a “governmental body,” and (3) the
Physicians Network’s Certified Member Program “is not the official business” of
The Cancer Center has established that the Physicians Network is a “separate
legal entity” and not a “governmental body.” See id. § 552.003(1) (defining
“[g]overnmental body” (internal quotations omitted)). However, it has not
established that the Physicians Network is not connected to the transaction of official
business of the Cancer Center. Indeed, the reason for the existence of Texas
Government Code section 552.002(a)(2) is that sometimes “pubic information” may
be maintained by private entities. See, e.g., Adkisson, 459 S.W.3d at 767–75
(considering whether certain information in “private e-mail accounts” constituted
“public information” under PIA).
To support its assertion that the business of the Physicians Network’s
Certified Member Program “is not the official business” of the Cancer Center, the
Cancer Center relies on the testimony of Hay, its Vice President of Global Business
Development. In her affidavit, Hay did testify that the Physicians Network’s
primary purpose is to “provide quality improvement and best practices management
services to . . . community hospitals through [its] Certified Member Program,” the
24 Physicians Network directly “contracts and affiliates” with the community hospitals
which pay it a fee in exchange for the services it provides, the Cancer Center is not
a party to, does not receive fees or revenue from any of the Physicians Network’s
Certified Member Program contracts, and the Cancer Center is not a party to any
contracts between the Physicians Network and its consultants who provide services
in connection with the Certified Member Program. However, even though the
Cancer Center is not a party to the contracts between the Physicians Network, the
third-party community hospitals, and the consultants, there is still evidence in the
record that the administration of the Certified Member Program may constitute the
“[o]fficial business” of the Cancer Center. See TEX. GOV’T CODE ANN.
§ 552.003(2-a) (defining “[o]fficial business” (internal quotations omitted)).
First, MD Anderson Services Corporation’s “Form 990” tax return, attached
to Fallon’s summary-judgment motion, identifies the Cancer Center as the
“controlling entity” of the Physicians Network. And if the Cancer Center controls
the Physicians Network, then the Cancer Center may have some “authority” over the
programs that the Physicians Network administers, including the Certified Member
Program. See id.
Second, the Physicians Network’s Amended and Restated Certificate of
Formation, which Fallon attached to his summary-judgment motion, states that the
Physicians Network’s “sole [m]ember” is the president of the Cancer Center. The
25 “[s]ole member” has the “right, power, and authority to amend” the Physicians
Network’s Certificate of Formation. And by appointing the Cancer Center’s
president as the Physicians Network’s “sole [m]ember,” the Physicians Network’s
Amended and Restated Certificate of Formation may indicate that the Cancer Center
has some indirect control over the Physicians Network, even though the Network’s
independent board of directors still has control over the “direction and management
of [the Physician Network’s] affairs” and the “disposition of its properties and
funds.” See TEX. BUS. ORGS. CODE ANN. §§ 22.151(a) (non-profit corporation can
be formed with members or without members), 22.161 (member of non-profit
corporation may be entitled to vote at election of directors), 22.351 (“A member of
a corporation, on written demand stating the purpose of the demand, is entitled to
examine and copy at the member’s expense, in person or by agent, accountant, or
attorney, at any reasonable time and for a proper purpose, the books and records of
the corporation relevant to that purpose.”); see also TEX. GOV’T CODE ANN.
§ 552.003(2-a).
Third, the various pages from the Cancer Center’s website referenced by
Fallon show that there are Cancer Center administrative staff who have
administrative or advisory duties over the Physicians Network. See TEX. GOV’T
CODE ANN. § 552.003(2-a). For example, the Cancer Center employs (1) an
Executive Vice President for Administration, who “provides executive oversight”
26 for the Physicians Network, (2) a Senior Vice President, who “provides leadership
for a team focused on engaging community hospitals and health care systems across
the nation and around the world with the goal of improving the quality of cancer care
in those communities,” and (3) a Vice President of Operations, who “is responsible
for all clinical operations provided to partners at a network of national locations.”
These three pieces of evidence, i.e., the “Form 990” tax return, the Amended
and Restated Certificate of Formation, and the Cancer Center’s website, raise a
genuine issue of material fact as to whether the Cancer Center has “authority,
administrative duties, or advisory duties” over the Physicians Network’s Certified
Member Program, thereby indicating that the administration of the Certified
Member Program may constitute the Cancer Center’s “[o]fficial business” under the
PIA. See id.; see also Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
221, 227–28 (Tex. 2004). Thus, we conclude that the Cancer Center has not
established, as a matter of law, that the information responsive to Fallon’s public
information request that is possessed by the Physicians Network is not “in
connection with the transaction of official business” of the Cancer Center. See TEX.
GOV’T CODE ANN. § 552.002(a).
Next, we consider whether the Cancer Center proved, as a matter of law, that
the Physicians Network does not maintain responsive information “for” the Cancer
Center. See id. § 552.002(a)(2).
27 According to the Cancer Center, Hay’s testimony in her affidavit shows that
the responsive information possessed by the Physicians Network is not maintained
“for” the Cancer Center; rather, it is maintained “for” the Physicians Network, itself,
and the third-party community hospitals and consultants with whom the Physicians
Network contracts and affiliates as part of the Certified Member Program.
In her affidavit testimony, Hay establishes two basic facts: (1) the Physicians
Network and the Cancer Center are “separate legal entit[ies]” and (2) the Cancer
Center is not a party to and does not receive fees or revenue from any of the
Physicians Network’s Certified Member Program contracts. However, the fact that
the Cancer Center and the Physicians Network are separate legal entities does not
mean that the Physicians Network does not maintain responsive information “for”
the Cancer Center. See id. As previously stated, “public information” may
sometimes be maintained by private entities. See, e.g., Adkisson, 459 S.W.3d at
767–75. And even though the Cancer Center is not a party to, and does not receive
fees and revenue from the Certified Member Program contracts, there is evidence
that the Physicians Network enters into those contracts and ultimately administers
the Certified Member Program “for” the Cancer Center. For instance, the Amended
and Restated Certificate of Formation states that the Physicians Network “is to be
administered solely for the benefit of [t]he . . . Cancer Center . . . by providing,
directly or indirectly, assistance and benefit, financial or otherwise, to the [Cancer
28 Center] through whatever means are determined by the [b]oard of [d]irectors,
including, but not limited to, making distributions or providing services.” And this
provision indicates that the Certified Member Program contracts may be benefiting
the Cancer Center “indirectly” by furthering the Cancer Center’s mission of
preventing and treating cancer. Further, it stands to reason that if the Physicians
Network is administered “solely” for the Cancer Center’s “benefit,” then the
Physicians Network’s programs, including the Certified Member Program, may be
administered for the Cancer Center’s benefit as well.
Notwithstanding the express language of the Amended and Restated
Certificate of Formation, the Cancer Center asserts that the Physicians Network
cannot be characterized as administering the Certified Member Program “for” the
Cancer Center. Relying on an opinion issued by the Austin Court of Appeals, which,
in turn, relies on an opinion of the Texas Attorney General,15 the Cancer Center
asserts that a private entity maintains information “for” a “governmental body” only
when the private entity maintains the information “on behalf of,” “at the request of,”
or “under the direction of” the “governmental body.” (Internal quotations omitted.)
See Murphy v. City of Austin, No. 03-04-00332-CV, 2005 WL 309203, at *3 (Tex.
15 See id. § 552.306 (“Rendition of Attorney General Decision; Issuance of Written Opinion”); Tex. Ass’n of Appraisal Dists., Inc. v. Hart, 382 S.W.3d 587, 591 (Tex. App.—Austin 2012, no pet.) (due consideration may be given to the Attorney General’s PIA decisions, but they are not binding).
29 App.—Austin Feb. 10, 2005, no pet.) (mem. op.) (quoting Tex. Att’y Gen.
OR1987-462). The Cancer Center further argues that the Physicians Network does
not maintain responsive information “for” the Cancer Center because it did not
request or direct the Physicians Network to administer the Certified Member
Although there is no evidence that the Cancer Center specifically
“request[ed]” or “direct[ed]” the Physicians Network to administer the Certified
Member Program,16 the Amended and Restated Certificate of Formation constitutes
evidence that the Physicians Network nevertheless administers the program on
behalf of the Cancer Center. To the extent that Murphy can be read as supporting a
narrower understanding of when a private entity acts “on behalf of” a “governmental
body,” we respectfully reject such a reading, as it conflicts with the statutory
mandate that the PIA be “liberally construed” in favor of disclosure and it ignores
subsequent amendments to the statute’s definition of public information. See TEX.
GOV’T CODE ANN. § 552.001(a), (b); see also Act of May 24, 2013, 83rd Leg., R.S.,
ch. 1204, §§ 1–2, secs. 552.002(a-1), 552.003(2-a), 2013 Tex. Gen. Laws 3012,
3012–13 (codified at TEX. GOV’T CODE ANN. §§ 552.002(a-1), 552.003(2-a)).
16 We note, however, that MD Anderson Services Corporation’s “Form 990” tax return does state that the Cancer Center is the “controlling entity” of the Physicians Network, and this constitutes some evidence that the Physicians Network may administer the Certified Member Program under the general direction of the Cancer Center.
30 Notably, these amendments added provisions that broadly define the circumstances
under which information is “in connection with the transaction of official business.”
TEX. GOV’T CODE ANN. § 552.002(a-1), see also id. § 552.003(2-a). And they
underscore the notion that the PIA’s terms should be broadly construed when doing
so would further the PIA’s policy of favoring disclosure.
Accordingly, we conclude that Fallon has raised a genuine issue of material
fact as to whether the Physicians Network maintains information responsive to
Fallon’s public information request “for” the Cancer Center, and the Cancer Center
has not established, as a matter of law, that the Physicians Network does not maintain
responsive information “for” the Cancer Center. See id. § 552.002(a)(2); see also
Miranda, 133 S.W.3d at 221, 227–28.
Finally, we consider whether the Cancer Center proved, as a matter of law,
that it does not have a “right of access” to the responsive information maintained by
the Physicians Network. See TEX. GOV’T CODE ANN. § 552.002(a)(2)(B). The
Cancer Center argues that it does not have a “right of access” to the information
responsive to Fallon’s public information request because (1) the Physicians
Network is a “separate legal entity” and (2) the Cancer Center is not a party to, and
does not receive fees or revenue from, any of the Physicians Network’s Certified
Member Program contracts.
31 As discussed above, however, there is evidence indicating that, despite these
facts, the Cancer Center has a “right of access” to the responsive information
maintained by the Physicians Network. This evidence includes MD Anderson
Services Corporation’s “Form 990” tax return and the Physicians Network’s
Amended and Restated Certificate of Formation. As previously noted, the “Form
990” tax return states that the Cancer Center is the “controlling entity” of the
Physicians Network. And the Amended and Restated Certificate of Formation states
that the Cancer Center’s president is the “sole [m]ember” of the Physicians Network
with the “right, power, and authority to amend” the Physicians Network’s Certificate
of Formation. Further, as the Physicians Network’s “sole [m]ember,” the Cancer
Center’s president has a right to examine, and, thus, a “right of access” to the
Physicians Network’s books and records. See TEX. BUS. ORGS. CODE ANN. § 22.351.
If the Cancer Center has some control over the Physicians Network, and the Cancer
Center’s president serves as the Physicians Network’s “sole [m]ember” with the
“right, power, and authority to amend” the Physicians Network’s Certificate of
Formation and the right to examine the Physicians Network’s books and records, it
follows that the Cancer Center may have a “right of access” to information in the
Physicians Network’s possession, both directly and indirectly, through the Cancer
Center’s president. Although the Cancer Center asserts that “[t]he existence of a
relationship between a governmental body and a separate legal entity does not itself
32 establish a specific right of access to [the] particular documents,” the “Form 990”
tax return and Amended and Restated Certificate of Formation establish more than
a mere “relationship” between the Cancer Center and the Physicians Network.
Rather, the evidence tends to show that the Cancer Center has a “right of access” to
the information that is responsive to Fallon’s public information request and that is
also in the possession of the Physicians Network.
Thus, we conclude that Fallon has raised a genuine issue of material fact as to
whether the Cancer Center has a “right of access” to the information responsive to
Fallon’s public information request that is in the Physicians Network’s possession
and the Cancer Center has not established, as a matter of law, that it does not have a
“right of access” to the responsive information maintained by the Physicians
Network. See TEX. GOV’T CODE ANN. § 552.002(a)(2)(B); see also Miranda, 133
S.W.3d at 221, 227–28.
In sum, the Cancer Center has not conclusively proved that the information
responsive to items 4-9 of Fallon’s public information request and that is in the
Physicians Network’s possession is not “public information” under the PIA. See
TEX. GOV’T CODE ANN. § 552.002(a) (internal quotations omitted). Accordingly,
we hold that the trial court erred in granting the Cancer Center’s plea to the
jurisdiction related to Fallon’s suit for a writ of mandamus to compel the Cancer
33 Center to produce information responsive to his public information request. See id.
§ 552.321 (“Suit for Writ of Mandamus”).
We sustain Fallon’s second issue.
Fallon’s first issue, in which he globally questions whether “a governmental
body [can] conceal public information from public inspection by conducting official
business through an ostensibly separate but . . . affiliated non-profit organization” is
subsumed in our discussion of his second and third issues and needs not be addressed
separately. See TEX. R. APP. P. 47.1.
Further, we note that, in the prayer for relief portion of his original brief,
Fallon requests that we reverse the trial court’s order denying his motion to compel
and granting the Cancer Center’s motion for protective order. However, Fallon does
not raise any issue or present any argument directly addressing any alleged error in
regard to the trial court’s denial of his motion to compel or its granting of the Cancer
Center’s motion for protective order. To the extent that Fallon attempts to seek such
relief, we hold that any issues are inadequately briefed and that Fallon has waived
any complaints related to the trial court’s denial of his motion to compel or its
granting of the Cancer Center’s motion for protective order.17 See TEX. R. APP. P.
17 In his reply brief, Fallon asserts that he has not waived any complaint regarding the trial court’s order related to his motion to compel and the Cancer Center’s motion for protective order. And he states that if “the Court renders judgment for [him], the protective order is . . . a nullity” and if “the Court reverses the plea to the jurisdiction and remands [the case] to the trial court, the protective order must be 34 38.1; CEVA Logistics U.S., Inc. v. Acme Truck Line, Inc., No. 01-16-00482-CV,
2018 WL 6694606, at *4 n.10 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no
pet.) (mem. op.) (appellant waived complaint regarding alleged error where it did
not present any issue or argument directly addressing error and only attempted to
raise complaint in its prayer); Washington v. Bank of N.Y., 362 S.W.3d 853, 854–55
(Tex. App.—Dallas 2012, no pet.) (party who does not adequately brief complaint
on appeal waives his issue); Dove v. Graham, 358 S.W.3d 681, 685 (Tex. App.—
San Antonio 2011, pet. denied) (complaint inadequately briefed where appellant
only requested that appellate court “reverse the trial court’s order granting
the . . . motion to sever” in her prayer and provided no argument or authority to
support her request).
vacated.” The Texas Rules of Appellate Procedure do not allow the inclusion of a new issue in a reply brief. See TEX. R. APP. P. 38.3; M Scott Constr., Ltd. v. Mireles, No. 14-15-00701-CV, 2016 WL 6990046, at *8 (Tex. App.—Houston [14th Dist.] Nov. 29, 2016, no pet.) (mem. op.); McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). And even if not a “new issue,” Fallon does not provide the Court with any appropriate analysis, discussion, or support for his assertions that the trial court erred in denying his motion to compel and granting the Cancer Center’s motion for protective order. See TEX. R. APP. P. 38.1(i); Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.) (conclusory statements are not sufficient and failure to provide substantive analysis of issue or cite appropriate authority waives complaint on appeal). A party who does not adequately brief a complaint on appeal waives his issue. Washington v. Bank of N.Y., 362 S.W.3d 853, 854–55 (Tex. App.—Dallas 2012, no pet.); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994); Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677–78 (Tex. App.—Dallas 2004, pet. denied) (appellate court cannot remedy deficiencies in appellant’s brief and argue his case for him).
35 Declaratory Judgment
In his fourth issue, Fallon argues that the trial court erred in dismissing his
declaratory-judgment claim because the Cancer Center never filed a plea to the
jurisdiction or other motion seeking dismissal of the claim for lack of subject-matter
jurisdiction. Fallon further argues that, even if the Cancer Center had properly raised
the issue, the trial court still erred in dismissing his claim because both the DJA and
PIA waive sovereign immunity when, as here, a party, who has submitted a public
information request under the PIA, files a separate claim against the “governmental
body” seeking a declaration that the information requested constitutes “public
Whether a court has jurisdiction is a threshold inquiry that can be addressed
by the court sua sponte and at any time. See Heckman v. Williamson Cty., 369
S.W.3d 137, 146 n.14 (Tex. 2012); James v. Underwood, 438 S.W.3d 704, 708 (Tex.
App.—Houston [1st Dist.] 2014, no pet.); see also Holcomb v. Waller Cty., 546
S.W.3d 833, 837 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (“A court must
assure itself that there is jurisdiction to hear a suit.”); DeWolf v. Kohler, 452 S.W.3d
373, 382 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“A court is obliged to
determine whether it has subject-matter jurisdiction and must consider the question
sua sponte even if it is not challenged by a party.”). Thus, the Cancer Center did not
need to file a plea to the jurisdiction or any motion for the trial court to consider
36 whether it has jurisdiction over Fallon’s declaratory-judgment claim. See DeWolf,
452 S.W.3d at 382–83 (affirming trial court’s sua sponte dismissal of claims for lack
of subject-matter jurisdiction); James, 438 S.W.3d at 708. Whether the trial court
has subject-matter jurisdiction is a question of law that we review de novo. Miranda,
133 S.W.3d at 226; Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d
849, 855 (Tex. 2002).
Sovereign immunity and its counterpart, governmental immunity, exist to
protect the State and its political subdivisions from lawsuits and liability for money
damages.18 Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex.
2008); IT–Davy, 74 S.W.3d at 853. Absent an express waiver of sovereign or
governmental immunity, courts do not have subject-matter jurisdiction over suits
against the State or its subdivisions. State v. Shumake, 199 S.W.3d 279, 283 (Tex.
2006); Miranda, 133 S.W.3d at 224–25.
In his third amended petition, Fallon, related to his declaratory-judgment
claim, sought a declaration that the information that he requested from the Cancer
18 Although the terms “sovereign immunity” and “governmental immunity” are often used interchangeably, sovereign immunity “extends to various divisions of state government, including agencies, boards, hospitals, and universities,” while governmental immunity “protects political subdivisions of the State, including counties, cities, and school districts.” See Ben Bolt–Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self–Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006); Odutayo v. City of Hous., No. 01-12-00132-CV, 2013 WL 1718334, at *2 n.8 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem. op.).
37 Center constitutes “public information” under the PIA. See James, 438 S.W.3d at
708 (“The determination of whether a trial court has subject-matter jurisdiction
begins with the pleadings.”).
The DJA gives Texas courts the power to “declare rights, status, and other
legal relations whether or not further relief is or could be claimed.” TEX. CIV. PRAC.
& REM. CODE ANN. § 37.003(a). And it provides:
A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
See id. § 37.004(a). Notably though, the DJA does not provide a general waiver of
sovereign immunity. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384,
388 (Tex. 2011); Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex.
2011); Tex. Dep’t of Ins. v. Green, No. 01-15-00321-CV, 2016 WL 2745063, at *3
(Tex. App.—Houston [1st Dist.] May 10, 2016, pet. denied) (mem. op.) (“[T]he
[]DJA waiver of sovereign immunity is narrow.” (internal quotations omitted)).
Instead, it provides a limited waiver of sovereign immunity for a claim that
challenges the validity or constitutionality of a statute and an ordinance. See TEX.
CIV. PRAC. & REM. CODE ANN. § 37.006(b); Sefzik, 355 S.W.3d at 621–22; City of
El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009); Green, 2016 WL
38 2745063, at *3. Here, Fallon does not seek a declaration concerning the PIA’s
validity or constitutionality. Instead, he seeks a declaration that construes the PIA
and his rights thereunder. Such claims are generally barred as the DJA does not
waive sovereign immunity for them. See Sefzik, 355 S.W.3d at 621 (“[T]he []DJA
does not waive the [S]tate’s sovereign immunity when [a] plaintiff seeks a
declaration of his . . . rights under a statute or other law.”); City of New Braunfels v.
Carowest Land, Ltd., 549 S.W.3d 163, 170–71 (Tex. App.—Austin 2017, pet. filed);
Green, 2016 WL 2745063, at *3.
We note that Fallon relies on various cases to support his assertion that the
DJA waives sovereign immunity for a claim that seeks a declaration of rights under
the PIA. See City of Garland, 22 S.W.3d at 357–58; Tex. Educ. Agency v. Leeper,
893 S.W.2d 432 (Tex. 1994); Town of Shady Shores v. Swanson, 544 S.W.3d 426
(Tex. App.—Fort Worth 2018, pet. granted); Kessling v. Friendswood Indep. Sch.
Dist., 302 S.W.3d 373 (Tex. App.—Houston [14th Dist.] 2009, pet. denied);
Labrado v. Cty. of El Paso, 132 S.W.3d 581 (Tex. App.—El Paso 2004, no pet.);
Hays Cty. v. Hays Cty. Water Planning P’ship, 106 S.W.3d 349 (Tex. App.—Austin
2003, no pet.); Thomas v. Cornyn, 71 S.W.3d 473 (Tex. App.—Austin 2002, no
pet.); Dominguez v. Gilbert, 48 S.W.3d 789 (Tex. App.—Austin 2001, no pet.); El
Paso Cty. Hosp. Dist. v. Gilbert, 64 S.W.3d 200 (Tex. App.—El Paso 2001, pet.
denied).
39 However, all but one of these cases were decided before the Texas Supreme
Court issued its opinion in Sefzik, which clarified that (1) governmental bodies are
immune from suits under the DJA unless the Legislature has waived immunity for
the particular claim at issue and (2) the DJA does not waive the state’s sovereign
immunity when a plaintiff seeks a declaration of his rights under a statute or other
law. 355 S.W.3d at 620–21. Further, the single case, Swanson, which was issued
by the Fort Worth Court of Appeals after the Supreme Court’s decision in Sefzik,
does not support Fallon’s position. Instead, Swanson stands for the proposition that,
when, as here, a plaintiff sues a governmental entity for a declaration of rights under
a statute or other law, that plaintiff must establish a waiver of immunity from some
source other than DJA, as the DJA provides no general waiver of immunity. 544
S.W.3d at 436–37 (“The [governmental entity] next argues that the []DJA does not
waive governmental immunity when a plaintiff . . . seeks a declaration of her rights
under a statute or other law. On this point, the [governmental entity] is correct.”).
In Swanson, the trial court affirmed the trial court’s denial of the governmental
entity’s plea to the jurisdiction related to the plaintiff’s declaratory-judgment claim
because the plaintiff established a waiver of the immunity under an alternative
source, i.e., the Texas Open Meetings Act. Id. at 437. Here, by contrast, Fallon has
failed to show that the PIA (or any other source) waives sovereign immunity for
Fallon’s declaratory-judgment claim against the Cancer Center. Indeed, contrary to
40 Fallon’s position in the instant case, since Sefzik, courts have held that sovereign
immunity bars a declaratory-judgment claim that seeks a declaration of rights under
the PIA. See, e.g., McLane Co. v. Tex. Alcoholic Beverage Comm’n, 514 S.W.3d
871, 874–76 (Tex. App.—Austin 2017, pet. denied) (affirming trial court’s dismissal
of declaratory-judgment claim seeking declaration of rights under PIA); see also
Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696, 706–09
(Tex. App.—Austin 2013, no pet.).
Based on the foregoing, we conclude that Fallon has failed to plead a
declaratory-judgment claim over which the trial court has jurisdiction. See James,
438 S.W.3d at 708 (plaintiff has burden to plead facts affirmatively showing trial
court has jurisdiction). Accordingly, we hold that the trial court did not err in
dismissing Fallon’s declaratory-judgment claim for lack of subject-matter
jurisdiction. Although a plaintiff generally deserves a reasonable opportunity to
amend a defective pleading, where, as here, the pleading demonstrates an incurable
defect or negates the existence of jurisdiction, the plaintiff need not be afforded an
opportunity to amend. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,
839–40 (Tex. 2007); James, 438 S.W.3d at 708–09.
We overrule Fallon’s fourth issue.
41 Conclusion
We reverse the portion of the trial court’s order granting the Cancer Center’s
plea to the jurisdiction related to Fallon’s suit for a writ of mandamus to compel the
Cancer Center to produce information responsive to his public information request.
We affirm the portions of the trial court’s order dismissing Fallon’s
declaratory-judgment claim and the trial court’s order denying Fallon’s motion for
summary judgment. We remand the case to the trial court for further proceedings
consistent with this opinion.
Julie Countiss Justice
The original panel consisted of Justices Jennings, Higley, and Massengale.
En banc reconsideration was requested. TEX. R. APP. P. 49.7.
The en banc court consists of Chief Justice Radack and Justices Keyes, Higley, Lloyd, Kelly, Goodman, Landau, Hightower, and Countiss.
The en banc court has unanimously voted in favor of reconsidering the case en banc.
Justice Countiss, writing for the en banc court.