TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00129-CV
Qatar Foundation for Education, Science and Community Development and Ken Paxton, Texas Attorney General, Appellants
v.
Zachor Legal Institute, Appellee
FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-18-006240, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING
OPINION
This is an appeal from the district court’s order sustaining Zachor Legal Institute’s
plea to the jurisdiction in Qatar Foundation’s suit under the Texas Public Information Act
(TPIA). Qatar Foundation filed suit against the Attorney General to prevent the disclosure of
information in response to a request for public information that Zachor Legal Institute had
submitted to Texas A&M University. Based on our conclusion that the TPIA waives sovereign
immunity for Qatar Foundation’s suit, we reverse the district court’s order and remand the case
for further proceedings.
BACKGROUND
Qatar Foundation is a private, non-profit organization headquartered in Doha,
Qatar. Its self-described mission is “to lead human, social, and economic development in Qatar through investment in education, science, and research.” As part of that mission, Qatar
Foundation partners with universities around the world, including Texas A&M, to open and
operate branch campuses at its “Education City” in Qatar.
In May 2018, Zachor Legal Institute submitted a request for public information to
Texas A&M for a “summary of all amounts of funding or donations received by or on behalf of
[Texas A&M] from the government of Qatar and/or agencies or subdivision of the government
of Qatar between January 1, 2013 and May 22, 2018.”1 See Tex. Gov’t Code § 552.021
(requiring that public information be made available to public). Texas A&M, which did not
notify Qatar Foundation about the request, asked the Attorney General for a decision about
whether it had to release information that “identifies donors to the university.” See id.
§§ 552.1235(a) (excepting from disclosure information disclosing the identity of person, other
than governmental body, making a gift, grant, or donation of money to institution of higher
learning), .301 (directing governmental body seeking to withhold information to request
Attorney General opinion), .305(d) (directing governmental body to make good-faith effort to
notify third party of request involving privacy or property interests). The Attorney General’s
subsequent letter ruling, issued in August 2018, concluded that Texas A&M “must withhold the
donors’ identifying information” under section 552.1235 but directed it to “release the remaining
information,” which included information related to contractual payments Qatar Foundation had
made to Texas A&M. See Tex. Att’y Gen. OR2018-20240. Texas A&M did not challenge the
letter ruling.
1 The request characterized Qatar Foundation as an agency or subdivision of the Qatari government. Qatar Foundation disputes this characterization. 2 Qatar Foundation, which maintains that it was not aware of Zachor Legal
Institute’s request until two months after the Attorney General’s letter ruling issued, filed the
underlying suit for declaratory judgment against the Attorney General in October 2018. In its
suit, Qatar Foundation asserted and sought declarations that information responsive to the
request is protected from disclosure under the TPIA because the information constitutes trade
secrets and confidential commercial or financial information and because it reveals the amount
of the grant or donation and the identity of the donor. See id. §§ 552.110(a)–(b) (excepting trade
secrets and certain commercial and financial information from disclosure), .1235(a). Qatar
Foundation relied on section 552.325 as the asserted basis for jurisdiction over its suit. See id.
§ 552.325(a) (“A governmental body, officer for public information, or other person or entity
that files a suit seeking to withhold information from a requestor may not file suit against the
person requesting the information.”); Boeing Co. v. Paxton, 466 S.W.3d 831, 833, 839 (Tex.
2015) (recognizing that section 552.325 provides judicial remedy to third party seeking to
withhold requested information). Zachor Legal Institute intervened in the suit. See Tex. Gov’t
Code § 552.325(a).
Soon after Qatar Foundation filed its suit, Zachor Legal Institute submitted a
second TPIA request, this time asking for “[a]ll correspondence and communications between
[Texas A&M] and third parties relating to [the first request for information]” and “[a]ll
communications relating to [Texas A&M] funding, programs and activities between [Texas
A&M] and the parties listed in [the first request for information] between 2013 and the current
date.” Texas A&M notified Qatar Foundation and asked the Attorney General for an opinion
about whether the requested information is excepted from disclosure under TPIA sections
552.104, 552.110, and 552.1235. See id. §§ 552.104 (excepting from disclosure information
3 related to competition or bidding), .110, .1235. Qatar Foundation sent the Attorney General a
detailed letter explaining why its negotiations and agreements with partner universities, including
Texas A&M, and information regarding the amounts and types of funding are exempt from
disclosure under sections 552.104, 552.110, and 552.1235. See id. § 552.305(b) (allowing
person whose privacy or property interests are involved in TPIA request to submit to Attorney
General reasons why the information should be withheld or released).
In a second letter ruling, the Attorney General concluded that Qatar Foundation
had established that release of the requested information “would give an advantage to a
competitor or bidder,” see id. § 552.104(a), and directed Texas A&M to withhold the
information. See Tex. Att’y Gen. OR2019-01288. The Attorney General also noted that because
some of the information responsive to Zachor Legal Institute’s request may be affected by his
first letter ruling, he would defer to the trial court to make its own independent determination
regarding disclosure: “[The Attorney General] will allow the trial court to resolve the issue of
whether the information that is the subject of the pending litigation must be released to the
public.” Id.
Zachor Legal Institute filed a plea to the jurisdiction in the underlying case,
arguing that the district court lacks jurisdiction over Qatar Foundation’s suit because “[n]o
provision of the TPIA authorizes a third party that asserts privacy or property interests to file a
lawsuit to challenge a decision of the Attorney General.” Both Qatar Foundation and the
Attorney General filed briefs opposing Zachor Legal Institute’s jurisdictional argument, but the
district court sustained Zachor Legal Institute’s plea to the jurisdiction and dismissed Qatar
Foundation’s case. Qatar Foundation appeals.
4 ANALYSIS
In a single issue, Qatar Foundation asserts, and the Attorney General agrees, that
the district court erred in sustaining Zachor Legal Institute’s plea to the jurisdiction because the
district court has jurisdiction over an action brought against the Attorney General by a third party
who seeks to withhold protected information from disclosure under the TPIA. Zachor Legal
Institute contends that the district court did not err because the TPIA does not waive sovereign
immunity for Qatar Foundation’s suit against the Attorney General. Based on the text of the
TPIA and Texas Supreme Court precedent, we agree with Qatar Foundation and the Attorney
General that the district court has jurisdiction over Qatar Foundation’s suit, and thus erred in
sustaining Zachor Legal Institute’s plea to the jurisdiction.
Sovereign immunity protects the State of Texas and its agencies from suit and
liability. Texas Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011). The
Legislature may waive immunity by statute, but it must do so by clear and unambiguous
language. Tex. Gov’t Code § 311.034; Hillman v. Nueces County, 579 S.W.3d 354, 360 (Tex.
2019) (“To waive governmental immunity, a statute must use ‘clear and unambiguous language’
expressing that intent.” (citing Tooke v. City of Mexia, 197 S.W.3d 325, 328–29 (Tex. 2006))).
Whether the TPIA waives sovereign immunity is a matter of statutory construction, which is a
question of law that we review de novo. See Texas W. Oaks Hosp., LP v. Williams, 371 S.W.3d
171, 177 (Tex. 2012). Procedurally, the assertion of sovereign immunity implicates the trial
court’s jurisdiction and is properly asserted in a plea to the jurisdiction. Houston Belt &
Terminal Ry. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016); Rusk State Hosp. v. Black,
392 S.W.3d 88, 91 (Tex. 2012). Where, as here, the material jurisdictional facts are undisputed
and the analysis of the jurisdictional plea turns on an issue of statutory construction, the trial
5 court rules on the plea to the jurisdiction as a matter of law. See Texas Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004). We review a trial court’s ruling on a plea to
the jurisdiction de novo. Id. at 228.
The TPIA “guarantees access to public information, subject to certain
exceptions.” Texas Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 114
(Tex. 2011). Public information includes information that is collected, assembled, or maintained
by or for a governmental body. Tex. Gov’t Code § 552.002(a). Such information is available by
request unless an exception applies. In re City of Georgetown, 53 S.W.3d 328, 331 (Tex. 2001)
(orig. proceeding).
A request for public information typically involves two parties, the governmental
body holding the information and the person requesting it. The governmental body must
promptly ask the Attorney General for a ruling if it seeks to withhold the information. Boeing,
466 S.W.3d at 833 (citing Tex. Gov’t Code § 522.301). Because the government gathers
information from people and companies doing business in Texas, some requests may also
implicate privacy or property interests of third parties. Id. When a request involves this type of
information, the Texas Supreme Court has explained that the TPIA “permits the third party to
raise the issue and any applicable exception to the information’s disclosure with the Attorney
General, or in district court, or both.” Id. (emphasis added) (citing Tex. Gov’t Code
§§ 552.305(b), .325). Qatar Foundation, alleging that the request at issue here involves
information that implicated its privacy and property interests, filed this suit against the Attorney
General under section 552.325. Zachor Legal Institute contends that the TPIA does not clearly
and unambiguously waive sovereign immunity for Qatar Foundation’s suit, and thus the district
court lacks jurisdiction. See Miranda, 133 S.W.3d at 224 (“In Texas, sovereign immunity
6 deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain
governmental units have been sued unless the state consents to suit.”).
When deciding whether a statute clearly and unambiguously waives sovereign
immunity, we:
(1) consider “whether the statutory provisions, even if not a model of clarity, waive immunity without doubt;”
(2) resolve any “ambiguity as to waiver . . . in favor of retaining immunity;”
(3) generally find waiver “if the Legislature requires that the [governmental] entity be joined in a lawsuit even though the entity would otherwise be immune from suit;”
(4) consider whether the legislature “provided an objective limitation on the governmental entity’s potential liability”; and
(5) consider “whether the statutory provisions would serve any purpose absent a waiver of immunity.”
Hillman, 579 S.W.3d at 360 (citing Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283
S.W.3d 838, 844 (Tex. 2009)). Although section 552.325 is no model of clarity, it
waives immunity for Qatar Foundation’s suit by recognizing, as the supreme court
explained in Boeing, that a party other than a governmental body may file a suit seeking
to withhold information requested under the TPIA:
552.325 Parties to Suit Seeking to Withhold Information
(a) A governmental body, officer for public information, or other person or entity that files a suit seeking to withhold information from a requestor may not file suit against the person requesting the information. The requestor is entitled to intervene in the suit.
(b) The governmental body, officer for public information, or other person or entity that files the suit shall demonstrate to the court that the
7 governmental body, officer for public information, or other person or entity made a timely good faith effort to inform the requestor . . . . of: (1) the existence of the suit, including the subject matter and . . . ; (2) the requestor’s right to intervene in the suit or to choose to not participate in the suit; (3) the fact that the suit is against the attorney general in Travis County district court; and (4) the address and phone number of the office of the attorney general.
Tex. Gov’t Code § 552.325 (emphases added); see also Boeing, 466 S.W.3d at 838 (concluding
“Legislature intended private parties . . . to have . . . the right to protect their interest in the
information protected by section 552.104 through the judicial remedy provided by section
552.325” (citations omitted)). Further, the fact that the provision requires that a suit seeking to
withhold information be filed against the Attorney General makes clear that the Legislature
intended to waive immunity for such suits. See Hillman, 579 S.W.3d at 360 (noting that courts
generally find waiver if the Legislature requires that governmental entity be joined in a lawsuit
even though it would otherwise be immune); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d
692, 697–698 (Tex. 2003) (“[I]f the Legislature requires that the State be joined in a lawsuit for
which immunity would otherwise attach, the Legislature has intentionally waived the State’s
sovereign immunity.”). Also, because the remedy for a suit under this provision is a declaration
that the requested information is not subject to disclosure and because the TPIA does not
authorize attorney fees for this type of suit, there is an objective limitation on the governmental
entity’s potential liability. See Tex. Gov’t Code § 552.323 (authorizing attorney fees for two
types of suits under the TPIA, but not for suit under section 552.325); Hillman, 579 S.W.3d at
360 (in deciding whether immunity has been waived, court must consider whether legislature
“provided an objective limitation on government’s potential liability”). Finally, if section
552.325 does not waive immunity for third-party suits seeking to withhold information, the
8 language referencing “other person or entity” filing a suit would serve no purpose. See Hillman,
579 S.W.3d at 360 (in determining waiver, courts must “consider whether the statutory
provisions would serve any purpose absent a waiver of immunity”); see also Creative Oil & Gas,
LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 134 (Tex. 2019) (“Every word in a statute is
presumed to have a purpose and should be given effect if reasonable and possible.”).
Zachor Legal Institute concedes that section 552.325 waives sovereign immunity
but insists that it does so only for suits brought by a governmental body, not by a third party. In
support of this argument, Zachor Legal Institute contends that section 552.325 merely describes
how the waiver of immunity in section 552.324 is to be exercised. Section 552.324, titled “Suit
by Governmental Body,” specifies that a suit by a governmental body seeking to withhold
information may only seek declaratory relief from compliance with an Attorney General opinion,
that it must be filed against the Attorney General in Travis County district court within thirty
days of the Attorney General’s decision, and that if the governmental body does not file such a
suit, it must comply with the Attorney General’s decision. See Tex. Gov’t Code § 552.324.
Section 552.325, on the other hand, recognizes that persons or entities other than a governmental
body may file a suit seeking to withhold information from a requestor, prohibits filing such a suit
against a requestor, directs that these suits be filed against the Attorney General, and describes
how requestors are to be notified and treated in these types of suits. See id. § 552.325. In sum,
although the two provisions might overlap, section 552.324 addresses only suits by governmental
bodies seeking to withhold information, while section 552.325 addresses all suits seeking to
withhold information from a requestor and, most important here, recognizes that parties other
than a governmental body may file such suits. For that reason, we would impermissibly have to
decide that section 552.325’s reference to “other person or entity” has no purpose if we were to
9 accept Zachor Legal Institute’s interpretation. See Creative Oil & Gas, 591 S.W.3d at 134
(“Every word in a statute is presumed to have a purpose and should be given effect if reasonable
and possible.”). We would also have to ignore the Texas Supreme Court’s conclusion that
section 552.325 authorizes third-party suits seeking to withhold protected information. Boeing,
466 S.W.3d at 833, 838.2
Zachor Legal Institute argues that the only available relief for a third party
seeking to withhold protected information from a requestor is to submit comments to the
Attorney General in response to a governmental body’s request for an Attorney General opinion,
see Tex. Gov’t Code § 552.305(b) (allowing person whose interests may be involved, to submit
to Attorney General “reasons why the information should be withheld or released”), or to file suit
for declaratory or injunctive relief against the governmental body under section 552.3215, see id.
§ 552.3215 (allowing victim of TPIA violation to complain to appropriate district or county
attorney or to Attorney General and authorizing district or county attorney or Attorney General
to file suit against governmental body in response to complaint). Nothing in the text of the
TPIA, however, suggests that these are the exclusive remedies for such parties and, as discussed
above, the Texas Supreme Court has explained to the contrary that the TPIA allows third parties
to raise privacy and property issues “with the Attorney General, or in district court, or both.”
2 Zachor Legal Institute maintains that the Texas Supreme Court’s statements regarding section 552.325 and third-party rights in Boeing are dicta, and thus do not control our analysis here, because jurisdiction was not an issue in that case. We disagree that the statements are dicta. In holding that Boeing could invoke section 552.104’s exception, the supreme court explicitly relied on Boeing’s being able to protect its privacy and property interests through the “judicial remedy provided in section 552.325.” Boeing Co. v. Paxton, 466 S.W.3d 831, 839 (Tex. 2015). We cannot disregard as dicta the supreme court’s discussion of an issue that supports its ultimate conclusion. See Texas Farm Bureau Mut. Ins. v. Sturrock, 146 S.W.3d 123, 127–28 (Tex. 2004) (holding that its discussion of an issue that supports ultimate conclusion is not dicta). 10 Boeing, 466 S.W.3d at 833 (citing Tex. Gov’t Code §§ 552.305(b), .325). We also note that
section 552.3215 does not offer a meaningful remedy to a party seeking to withhold information
because it addresses a “victim of a violation of [the TPIA]” by a governmental body. See id.
§ 552.3215. A party seeking to withhold protected information is not yet, and may never be, a
victim of a TPIA violation involving the release of that information. Only when the
governmental body improperly releases the information would a party seeking to withhold
information potentially fall under section 552.3215, but at that point the damage would have
been done.
In conflict with its argument that the TPIA waives sovereign immunity only for
suits by a governmental body, Zachor Legal Institute also suggests that Qatar Foundation could
have overcome the sovereign-immunity barrier by including Texas A&M in its suit. But section
552.325’s only party-specific requirements are that the suit be brought against the Attorney
General and that the requestor may not be named as a party. See Tex. Gov’t Code § 552.325.
Nor is there any requirement that the governmental body be named party to the suit because the
core issue in such a suit, and thus the subject of any resulting judgment, is whether the requested
information can be withheld. See id.; see also id. §§ 552.104 (exempting from disclosure
information that provides advantage to competitor or bidder), .110 (exempting from disclosure
trade secrets and confidential or financial information). “[W]hether information is subject to the
[TPIA] and whether an exception to disclosure applies to the information are questions of law.”
City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000).
In a final argument, Zachor Legal Institute contends that the district court lacks
subject-matter jurisdiction over Qatar Foundation’s suit because Texas A&M, as the
governmental body holding the requested information, is an indispensable party to the suit, and
11 as a result, the district court could not give adequate relief without Texas A&M’s joinder. See
Tex. R. Civ. P. 39(a) (governing joinder of persons needed for just adjudication). The trial court
cannot give complete relief without Texas A&M as a party, Zachor Legal Institute argues,
because Texas A&M, not the Attorney General, has the duty to produce public information and
because Texas A&M is now under a mandatory duty to disclose the requested information given
that it did not file a lawsuit challenging the Attorney General’s decision. See Tex. Gov’t Code
552.324(b). However, even assuming Zachor Legal Institute’s assertions are correct, the Texas
Supreme Court has indicated that the failure to join a necessary party does not deprive the trial
court of subject-matter jurisdiction; instead, it raises the prudential question of whether the trial
court should have refused to proceed in the necessary party’s absence. See Brooks v. Northglen
Ass’n, 141 S.W.3d 158, 162–63 (Tex. 2004); see also id. at 163 (holding that party had waived
Rule 39 issue by failing to raise it before trial court); Texas Ass’n of Bus. v. Texas Air Control
Bd., 852 S.W.2d 440, 444 (Tex. 1993) (noting that subject-matter jurisdiction “is never presumed
and cannot be waived”); Barrera v. Chererco, LLC, No. 04-16-00235-CV, 2017 WL 943436, at
*3 (Tex. App.—San Antonio Mar. 8, 2017, no pet.) (“The failure to join a person whose interests
could be affected by the trial court’s judgment or declaration does not deprive a trial court of
jurisdiction.”); Mining v. Hays Cnty Bail Bond Bd., No. 03-05-00448-CV, 2006 WL 952402, at
*5 (Tex. App.—Austin Apr. 14, 2006, no pet.) (noting that in Brooks “the supreme court has
more recently held that subject matter jurisdiction is rarely implicated by the failure to join a
party required under section 37.006(a) of the declaratory judgment act or rule of civil procedure
39”). Here, because we are remanding, Zachor Legal Institute can raise the Rule 39 issue with
the trial court to allow it to determine whether it should refuse to enter a judgment or declaration
in Texas A&M’s absence. See Brooks, 141 S.W.3d at 163.
12 Based on the text of the TPIA and the supreme court’s decision in Boeing, we
hold that the TPIA waives sovereign immunity for Qatar Foundation’s suit against the Attorney
General. Because immunity has been waived, the district court has jurisdiction over Qatar
Foundation’s suit and, thus, erred in dismissing Qatar Foundation’s suit. Accordingly, we
sustain Qatar Foundation’s sole issue on appeal.
CONCLUSION
Having sustained Qatar Foundation’s issue, we reverse the district court’s
judgment and remand the case to the district court for further proceedings.
__________________________________________ Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Smith
Reversed and Remanded
Filed: April 15, 2021