In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00064-CV __________________
SAN JACINTO RIVER AUTHORITY, Appellant
V.
ERIC YOLLICK, INDIVIDUALLY AND AS PUBLISHER OF THE GOLDEN HAMMER NEWSPAPER, Appellee
__________________________________________________________________
On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 17-10-12505-CV __________________________________________________________________
OPINION
The Texas Public Information Act (the Act) 1 requires public entities like the
San Jacinto River Authority (SJRA) to make certain information publicly available
after receiving a written request seeking access to it unless they ask the Attorney
General to approve withholding the information or show the Attorney General has
1See Tex. Gov’t Code Ann. §§ 552.001-.376 (Texas Public Information Act). 1 already reviewed the information that was requested and determined the information
is subject to an exception to disclosure under the Act. 2 But the Act also penalizes
public entities should they fail to handle requests for information regulated by the
Act in the manner the Act requires. The Act does that by prohibiting the entity from
relying on most of the exceptions to the disclosure obligation in the Act should the
entity be sued by someone who sought access and who then seeks to enforce the
requirements of the Act when the entity refused to permit access to the information
after the entity did not comply with its duties under the Act.3 And if the Act requires
disclosure, the public entity must disclose the “complete information” covered in the
request.4
This appeal concerns the trial of a case filed by Eric Yollick against the SJRA
in which he claimed the SJRA failed to handle his request in accord with its duties
under the Act. The trial court found the SJRA did not handle his request properly
and then signed a judgment that requires the SJRA to disclose most of the
information in a document the parties call the SJRA’s Emergency Action Plan (the
Plan). The trial court also found a compelling reason exists that allows the SJRA to
2Id. § 552.021 (Availability of Public Information); id. § 552.301 (Request for Attorney General Decision). 3Id. § 552.326 (Failure to Raise Exceptions Before Attorney General). 4Id. § 552.001.
2 continue to withhold some of the information in the Plan and to continue to withhold
that specific information from Yollick. To prevent Yollick from accessing that
information, the trial court ordered the SJRA to redact certain information from its
Plan before allowing Yollick to see a copy, listing that information by page and
paragraph where the information to be redacted exists in the Plan. In its appeal, the
SJRA does not argue the Plan is not information regulated by the Act. 5 Instead, the
SJRA claims the evidence in the trial conclusively established it had complied with
its duties to Yollick under the Act after receiving his request. It argues it complied
with its duties for two reasons. First, the SJRA asserts the evidence shows it received
a request seeking the Plan a week before it received Yollick’s request from Bradford
Laney, who asked the SJRA for access to the Plan. The SJRA referred Laney’s
request to the Attorney General’s Office and asked that office to decide whether
exceptions in the Act authorized the SJRA to withhold the Plan when responding to
Laney’s request. Second, the SJRA asserts the evidence in the trial shows the
Attorney General, when responding to requests for information other than Yollick’s,
5Act of May 12, 1937, 45th Leg., R.S., ch. 426, § 2, 1935-1937 Tex. Gen. Laws Supp. 861 (creating the San Jacinto River Conservation and Reclamation District as a public entity and delegating to it the authority otherwise reserved for governmental agencies); see also Tri-City Fresh Water Supply Dist. No. 2 of Harris Cty. v. Mann, 142 S.W.2d 945, 948 (Tex. 1940) (noting that the powers of a public entity “are measured by the terms of the statutes” governing the entity); Tex. Gov’t Code Ann. § 552.002 (Definition of Public Information). 3 found the Plan to contain information that is excepted from disclosure requirements
of the Act. As further support for its argument claiming the judgment should be
reversed, the SJRA claims the trial court misinterpreted the Act when it applied the
Act to the evidence admitted at trial.
We conclude the SJRA’s arguments lack merit. For the reasons explained
below, we affirm.
Background
In August 2017, following Hurricane Harvey, information about how the
SJRA operates the Lake Conroe Dam became a topic of interest in Southeast Texas
when the hurricane stalled in the area and caused widespread flooding. 6 In
September 2017, Eric Yollick, a resident of Montgomery County and the publisher
of an internet blog, THE GOLDEN HAMMER, sent the SJRA an email asking that it
provide him with certain information about its operations at the Lake Conroe Dam,
information that included the SJRA’s flood control plans over the ten-year period
ending September 2017. The SJRA retained an attorney, Mitchell Page, to respond
to Yollick’s email. Page responded to Yollick’s request in a letter on October 11,
2017. In the letter, Page advised Yollick that the SJRA would not allow Yollick to
6See Major Hurricane Harvey – August 25-29, 2017, National Weather Service, https://www.weather.gov/crp/hurricane_harvey (last visited Feb. 26, 2021). 4 access the information covered in his request. He explained the only information the
SJRA has that addresses the information covered in Yollick’s email consisted of
information in its Plan. Page advised Yollick the SJRA would not comply with his
request because it had referred another request for the Plan, which it had received a
week earlier, to the Attorney General’s Office and asked the Attorney General to
authorize the SJRA to withhold the Plan from Laney in response to his request.
When Page informed Yollick that the SJRA was withholding the information
he asked for in his email, he also sent Yollick a copy of the letter that he sent to the
Attorney General’s Office on October 4, the letter that references Laney’s request.
In Page’s October 4 letter to the Attorney General’s Office, Page asked the Attorney
General to authorize the SJRA to withhold the Plan from Laney based on the
exceptions he identified that he asserted authorized the SJRA to withhold the Plan
form the public under the Act. According to Page’s letter to the Attorney General,
the Plan may be withheld because it contains information that qualifies as
confidential information under the Act and because it is related to litigation the
Authority faces over the manner it operated the Lake Conroe Dam following
Hurricane Harvey. 7
7Tex. Gov’t Code Ann. § 552.101 (Exception: Confidential Information); id. § 552.103 (Exception: Litigation or Settlement Negotiations Involving the State or a Political Subdivision). 5 In October 2017, Yollick sued the SJRA in Montgomery County after the
SJRA notified him that it was refusing to comply with his request. In his Original
Petition, Yollick claimed the SJRA failed to refer his request to the Attorney General
and that when it did so, it did not have a previous determination from the Attorney
General authorizing it to withhold the information in his request.
In February 2019, the parties tried the disputed issues to the bench. Following
the trial, the trial court signed a final judgment, which requires the SJRA to allow
Yollick to access most but not all the information in the Plan. The trial court allowed
the Authority to keep withholding certain information from Yollick that is in the
Plan after finding a compelling reason to do so existed based on the information the
trial court reviewed after conducting an in-camera inspection of the SJRA’s Plan.
The Trial
Only two witnesses were called to testify in the trial. Yollick called both
witnesses when he presented his case-in-chief. Yollick was his first witness. He
testified that he sent the SJRA an email in September 2017 and asked that it provide
him with access to the following based on its duties to him under the Act:
1. The ‘carefully prepared engineering plan’ to which [the SJRA’s] September 8, 2017, Press Release (“SJRA Responds to Lawsuit Regarding Hurricane Harvey Flooding”) referred[.] 2. All engineering plans since October 1, 1994, [the SJRA] has prepared or had prepared for it for the operation of the Lake Conroe dam with
6 respect to mitigation or reduction of downstream peak flows as water has passed through Lake Conroe from the San Jacinto River. 3. All flood control plans [the SJRA] has developed since August 28, 2007.
Yollick also testified that Page responded to his email in a letter dated October
11, 2017. Yollick introduced the letter into evidence. Page’s letter to Yollick states:
“The SJRA has already requested a decision from the Attorney General as to whether
all or part” of the Plan is subject to exceptions to a public entity’s disclosure
obligations under the Act.
During his testimony, Yollick also sought to distinguish between the
information he wanted to see and the information he thought might be relevant in
the lawsuits filed against the SJRA in Harris County. The pleadings in those suits,
which Yollick offered into evidence, reflect that various plaintiffs have sued the
SJRA for damages to their respective properties that they allege arose from the
manner the SJRA conducted its operations at the Lake Conroe Dam following
Hurricane Harvey. Yollick suggested the information he seeks from the SJRA is
different from the information relevant to the lawsuits the Authority is facing seeking
to recover damages to real and personal property because the information he seeks
does not include claims for damages to properties lying in Harris County. Yollick
testified that unlike the evidence relevant in the Harris County cases, the information
7 he seeks relates only to the downstream effects of water that is released from the
Lake Conroe Dam.
Yollick also acknowledged that, before the trial, Page provided him with a
copy of a letter the SJRA sent to the Attorney General’s Office in April 2017. Yollick
offered the April 19, 2017, letter into evidence. It shows the SJRA, through Page,
asked the Attorney General’s Office to authorize the SJRA to withhold information
that Page’s letter referring the matter to the Attorney General described as “certain
information” without providing any other significant way to identify the information
the Attorney General’s Office reviewed. The only other information in the letter
informative about what document or documents Page asked the Attorney General’s
Office to review as it relates to the April 19 letter from the Attorney General is that
the person who had asked the SJRA for information had requested access to “the
complete dam release protocol” for the Lake Conroe Dam. 8 Thus, whether the Plan
is among those documents the Attorney General’s Office reviewed in April 2017
and among the document or documents the Attorney General authorized the SJRA
to withhold is unclear from the information the Attorney General included in the
8The Attorney General’s Office’s letter cites sections 418.181 and 552.101 of the Government Code. Id. §§ 418.181, 552.101. Section 418.181 provides that “[t]those documents or portions of documents in the possession of a governmental entity are confidential if they identify the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism.” 8 letter. And in the trial, no one called any witnesses to identify what documents the
Attorney General’s Office reviewed or later authorized the SJRA to withhold based
on the Attorney General’s letter ruling in April 2017.
James Napolitano is the only other witness who testified in the trial.
Napolitano was never asked to address how the SJRA handled Yollick’s request.
The record shows Napolitano testified in the case as an expert on matters involving
security. He explained that, during his career, he has helped industry mitigate the
risks of emergencies by preparing for them with emergency plans. He testified
planning like this typically involves structures the government has classified as a
critical structure because such structures require those who control them to take
special precautions to harden them against the risk of attack. Napolitano testified he
currently owns a consulting business, which he said consults with clients who run
businesses that have concerns about security issues in their industries. Before
becoming the owner of that business, Napolitano testified he worked for the Secret
Service, Homeland Security, and as the City of Montgomery’s Chief of Police.
On cross-examination, Napolitano agreed he has no experience preparing
emergency plans for dams. He agreed his experience with emergency plans is limited
to consulting with industries that lie along the ship channel. In those facilities, he
acknowledged, the primary risk concerns risks attendant to explosions. Asked to
9 address what information is generally in a facility’s emergency plans, Napolitano
stated such plans often contain information describing “what would happen if the
critical infrastructure [were to be] attacked.”
In final argument, Yollick suggested the evidence in the trial established the
SJRA failed to handle his request in the manner required by the Act. He pointed out
that the SRJA never referred his request to the Attorney General’s Office or asked
that office to approve withholding the exact information he was asking for the SJRA
to allow him to see. And Yollick argued that when the SJRA refused to comply with
his request, it already had a determination from the Attorney General’s Office that
applied to the same information covered by his request.9 Yollick also suggested the
information he seeks is unrelated to the issues in the lawsuits filed against the SJRA
in Harris County. 10 Finally, Yollick argued the information he seeks differs from the
9See id. § 552.302 (Failure to Make Timely Request for Attorney General Decision; Presumption That Information is Public); id. § 552.326 (providing a penalty of waiver should the public entity ignore the duties the Act imposes on them in their handling of requests for information regulated by the Act). 10We note the record shows that Yollick is not a party or an attorney of record
in the cases against the Authority in Harris County. Yet the pleadings in those cases, which were admitted into evidence in the trial, show the downstream effects of releasing water from the Lake Conroe Dam is related to the issues involved based on the pleadings before us that concern those lawsuits. We may take judicial notice of geographical facts, so we judicially notice that Harris County is downstream from the Lake Conroe Dam. Office of Pub. Util. Counsel v. Pub. Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex. 1994) (“A court of appeals has the power to take judicial
10 information covered by the requests of others because the information he wants
includes no information about “the technical operation of the dam[.]”11
In closing argument, the SJRA argued that based on the evidence showing
how it responded to Yollick’s request, the court should find that the SJRA complied
with its duties to Yollick under the Act. The SJRA also suggested the evidence
reveals that the Attorney General had made a previous determination under the Act
that applies to the Plan before the SJRA denied Yollick’s request. Finally, the SJRA
argued all it needed to prove to show it complied with the Act was to show it referred
someone’s request seeking the Plan to the Attorney General’s Office on any date
before the trial of Yollick’s suit.
Before the trial court retired to deliberate its verdict, it asked the attorneys
whether a difference existed between a ruling addressing the Plan as a whole and
one requiring the SJRA to disclose just the pages and paragraphs of the Plan not
subject to exceptions under the Act under the evidence admitted during trial. In
response, the SJRA’s attorney suggested the SJRA could not segregate the
notice for the first time on appeal.”); see also Tex. R. Evid. 201(b) (allowing a court to judicially notice a fact that is not subject to reasonable dispute). 11In its judgment, the trial court found that “Eric Yollick modified his request
[during the trial] to specifically exclude any information which identifies the technical details of the Lake Conroe Dam[.]” 11 information in its Plan and produce just that body of information for which no
exception in the Act applied.
The trial court also questioned whether the SJRA handled Yollick’s request
in accord with the duties it had to Yollick under the Act. For example, the trial court
noted it did not appear to the court the information Yollick had asked to see in his
email necessarily covered the same information in a request seeking the “complete
dam release protocol” for the Lake Conroe Dam. Since at that point in the trial the
trial court had not yet seen the Plan, the trial court ordered the SJRA to produce the
Plan for an in-camera inspection. After inspecting the Plan in camera, the trial court
rendered its verdict, which requires the SJRA to produce the information the SJRA
has complained about in this appeal.
Issues
The SJRA raises one issue in its brief to claim the evidence in the trial
conclusively established that it complied with its duties to Yollick under the Act. It
concludes that because it did so, it did not have to refer Yollick’s request to the
Attorney General because the Attorney General’s Office has ruled that the Plan
contains information excepted from disclosure under the Act. 12 The SJRA also
12In the appeal, the SJRA has not argued the trial court made errors to justify granting it another trial. 12 argues the trial court misinterpreted the Act by requiring it to prove the Attorney
General’s Office decided the Plan is subject to the Act’s exceptions before October
11, 2017, the day it refused to comply with Yollick’s request.
Standard of Review
In its brief, the SJRA suggests a de novo standard applies to our resolution of
the issues it raises in its appeal. We agree a de novo standard applies to the SJRA’s
claim the trial court misinterpreted the Act when applying it to the facts the trial
court proved in the trial. 13 In construing a statute, our goal is to give the statute the
meaning the legislature intended the statute to have. We do so by looking to the plain
and common meaning of the words used in the statute, along with any definitions of
the words the statute may provide. 14
But besides arguing the trial court failed to properly interpret the Act, the
SJRA also claims it proved it complied with the duties the Act imposed in handling
Yollick’s request. Deciding how the standards of review apply to that claim requires
us to examine the statute. Under the Act, when someone sends a public entity a
request for information that is covered by the Act and the entity fails to handle the
13See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex. 1989) (reflecting a de novo standard applies to reviewing a lower court’s interpretation of a statute). 14Id.
13 request in the manner set out in the Act, the person who asked for access to the
information may file suit. 15 To do so, the Act provides that a person may enforce the
entity’s obligations under the Act by applying for “a writ of mandamus compelling
[the public entity] to make information available for public inspection if the [public
entity] refuses to request” a determination from the Attorney General “or refuses to
supply public information . . . that is not excepted from disclosure” under exceptions
in the Act. Generally, the Act favors giving citizens access to public information,
which is information we will describe as information regulated by the Act, if the
public entity has a duty to disclose it under the Act. 16
The Act also penalizes public entities should they ignore the duties created by
the Act as they relate to handling someone’s written request for information
regulated by the Act. 17 The manner public entities must handle such requests is
straightforward. It simply requires public entities that wish to withhold information
upon receiving a written request to (1) refer the request to the Attorney General and
15Tex. Gov’t Code Ann. § 552.321 (Suit for Writ of Mandamus). 16Id. § 552.021 (requiring a public entity to make public information available
“to the public at a minimum during normal business hours”). 17Id. § 552.301(a) (creating the requirement that obligates public entities to
take certain steps when they wish to withhold public information the Act allows the public to access from the public); id. § 552.326 (penalizing a public entity should the entity fail to take the steps proscribed by the Act when handling a citizen’s written request for information subject to the Act). 14 explain to the Attorney General what exception or exceptions in the Act applies to
the information the entity has been requested to allow the person to see, unless (2)
the Attorney General’s Office has made a “previous determination about whether
the information falls within one of the exceptions.” 18
When the trial court reduced its verdict to writing, it provided the parties even
though no one requested that it do so with findings of fact and conclusions of law,
several of which are directly relevant to arguments the SJRA has raised in its appeal.
For convenience of discussing the findings, we will simplify and summarize some
of the core findings directly relevant to resolving the argument the SJRA raises in
its appeal. The core findings in the trial court’s judgment show it found:
(1) The SJRA failed to seek a determination from the Attorney General about whether exceptions in the Act applied to the Plan; (2) At trial, the SJRA failed to prove it had determination from the Attorney General that applied to the Plan when, on October 11, 2017, the SJRA informed Yollick that it would not comply with his request; (3) After inspecting the Plan in camera, the trial court found a compelling reason justified allowing the SJRA to continue to withhold certain information in the Plan from Yollick even though the SJRA failed to prove it handled Yollick’s request in accord with the obligations triggered by Yollick’s email asking to see information in the SJRA’s Plan; and (4) During the trial, the SJRA failed to prove the letters the Attorney General’s Office sent that are in evidence constitute to a previous determination as required by the Act with respect to Yollick’s request.
18Id. § 552.301(a). 15 After learning the trial court had signed the judgment, neither party asked the trial
court to provide them with any more findings.19
While this is an appeal from a statutory mandamus proceeding, we do not treat
the findings the trial court made following the trial any differently than those trial
courts make when they decide other civil cases that the parties chose to try to the
bench. 20 In its brief, the SJRA has not argued the evidence is factually insufficient
to support the trial court’s verdict. Instead, it contends the evidence about whether it
complied with the duties it owed Yollick under the Act in handling his request was
so overwhelming the trial court could have reached only one conclusion, that is that
19See Tex. R. Civ. P. 296 (allowing parties to request the trial court to reduce its findings to writing); id. 289 (allowing the parties to request additional or amended findings). While Rule 299a of the Texas Rules of Civil Procedure instructs trial courts not to recite findings in judgments, the trial court did so here. Yet no party complains about that in the appeal. That said, a conflict exists among the intermediate courts of appeals about whether findings erroneously included in a trial court’s judgment are findings the appellate court should consider in deciding the appeal. In this Court, our practice is to consider the findings if the parties have not complained the trial court erred by including them in the judgment and if they do not conflict with the verdict the trial court reached in the trial. See In re Estate of Jones, 197 S.W.3d 894, 899-900 n.4 (Tex. App.—Beaumont 2006, pet. denied) (listing cases from various courts of appeals showing the conflict and explaining this Court’s practice). Here, even if we were to abandon our own precedent and ignore the trial court’s findings, we would still have to imply findings consistent with the findings we summarized above. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (explaining that appellate courts are to imply all findings supported by the evidence needed to affirm the judgment when no one files a request in the trial court for findings). 20Anderson v. City of Seven Points, 806 S.W.2d 791,794 (Tex. 1991).
16 it complied. To support that claim, the SJRA relies on four letters in evidence to
claim the evidence is so overwhelming to show that it conclusively proved that it
handled Yollick’s request in accord with its duties to him under the Act. 21
To resolve the appeal, we must decide whether the SJRA bore the burden of
proof in the trial to prove it handled Yollick’s request properly. We conclude that it
did have the burden of proving that claim based on the structure and requirements in
the Act. 22 And because it bore the burden of proof on that issue, to prevail in the
appeal it must establish the evidence allowed the trial court to reach just one
conclusion based on the evidence in the trial. 23
Analysis
The trial court’s findings reflect the court viewed the evidence as having
created a fact issue about whether the SJRA handled Yollick’s request properly
under the Act. 24 The Act sets forth a two-step process: an initial determination about
21See Tex. Gov’t Code Ann. §§ 552.101, .103, .301(e)(1)(A). 22See id. § 552.301 (requiring proof of a previous determination); id. §
552.302 (creating a presumption that the information the person requested is public information if the entity ignores its duties under the Act); id. § 552.326(a) (generally prohibiting public entities from relying on exceptions in subsections 552.101-.160 if the entity did not comply with its duty and refer the request to the Attorney General). 23See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (describing
standard of review that applies to a claim the evidence conclusively establishes a claim on which the party had the burden to prove in the trial). 24See Tex. Gov’t Code Ann. § 552.301(a).
17 whether the request someone sent the public entity is subject to an exception to
disclosure under the Act, and then—if the entity claims it may withhold the
information and if the Attorney General’s Office has not already issued a letter ruling
that addressed the same information covered in the person’s request—the entity must
refer the request to the Attorney General’s Office to allow the Attorney General to
rule on whether the entity may withhold the information from the person based on
one or more of the exceptions the entity relied on when it explained why it refused
to provide the information that is responsive to the request. 25
The SJRA argues the evidence allowed the trial court to reach only one
conclusion, that it handled Yollick’s request in a manner consistent with the duties
it had to Yollick under the Act. We disagree the evidence rises to that level. First,
the SJRA does not dispute Yollick’s claim that the SJRA did not refer his request to
the Attorney General. Thus, only two questions remain. First, did the SJRA
conclusively prove the Act excused it from referring Yollick’s request to the
Attorney General because it had a prior ruling covering the same information based
on another request?26 Second, did the SJRA conclusively prove that the prior ruling
from the Attorney General when it informed Yollick that it would not allow him to
25Id. 26Id.
18 see the information he was seeking because the information he asked to see is located
in its Plan? 27
In its brief, the SJRA points to four letters to argue the evidence relevant to
the above question is so overwhelming that no reasonable factfinder could have
found that the Attorney General’s Office had not ruled that it could withhold the
same information covered by Yollick’s request. The letters it relies on are a letters
Page sent to the Attorney General on October 4, 2017, and three letters the Attorney
General sent to Page, one before October 11, 2017, and two after October 11, 2017.
We address the information in these letters in chronological order, beginning with
the letter the Attorney General’s Office sent to Page in April 2017.
So does the April 2017 letter provide conclusive proof showing the SJRA had
determined that the SJRA could withhold the same information from someone else
covered by Yollick’s request? To decide that question, we must look to the record
and see whether the information in the letter together with the other evidence in the
trial communicates a decision by the Attorney General’s Office that applies to the
information at issue in the appeal. 28
27Id. 28Id.
19 First, we note that the Act requires the Attorney General’s Office to have made
a previous determination to excuse a public entity from its duty of referring requests
seeking for permission to access information regulated by the Act. 29 While not
specifically defined in the Act, what previous means under the Act is not ambiguous,
given (1) the Act’s objectives, (2) the circumstances under which the Act was
enacted, (3) the Act’s legislative history, (4) the common law, former law, and
similar provisions, (5) the consequences of the trial court’s construction of the Act,
and (6) the titles in the various sections of the Act we have relied on to resolve the
appeal.30 When courts construe the terms used in a statute, they “give effect to every
provision and ensure that no provision is rendered meaningless or
superfluous.”31 Terms not specifically defined are considered to have the meaning
assigned to them by the rules of grammar and the meaning a word has as commonly
used. 32
We look to Webster’s Dictionary for common meanings. It defines previous
as meaning “going before, leading the way, going or existing before in time.”33 The
29Id. 30Id. § 311.023 (Statute Construction Aids); see also In re Canales, 52 S.W.3d 698, 702 (Tex. 2001). 31Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 248 n.35 (Tex. 2010). 32See Tex. Gov’t Code Ann. § 311.011(a). 33WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1798
(2002) (examples omitted). 20 same dictionary defines determination as “the settling and ending of a
controversy.”34 Since the Attorney General’s letter is dated April 2017, which is
before October 11, 2017, we do not question that it is conclusive proof of some prior
ruling. But is the April 2017 letter along with the other evidence in the record
conclusive proof showing the Attorney General’s Office communicated a decision
applicable to the same information at issue in the appeal? We think the answer is no.
No witnesses testified in the trial about what documents the Attorney General’s
Office even reviewed before it issued its letter of April 2017. And no witnesses
described whether the exceptions the Attorney General’s letter ruling decided
applied to the Plan even covered the Plan, much less the parts of the Plan now at
issue in the appeal. The April 2017 letter simply does not sufficiently identify what
documents the SJRA asked the Attorney General’s Office to review; instead, the
letter states the SJRA asked the Attorney General to review “certain information” to
decide whether the SJRA could withhold its “complete dam release protocol” in
response to a request seeking the complete protocol based on Page’s representation
that was the information covered by someone’s request. We conclude the description
34WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 616 (2002) (examples omitted).
21 in the letter identifying what documents the ruling applies to is insufficient to offer
conclusive proof to establish the letter refers to Plan.
The second letter the SJRA relies on to support is appeal is Page’s letter to the
Attorney General dated October 4, 2017. To be sure, Page’s letter to the Attorney
General does refer the Attorney General’s Office to the SJRA’s Plan. Page’s letter
also states the Attorney General’s Office had reviewed the Plan and agreed it
contains confidential information and allowed the SJRA to withhold the Plan in
response to an earlier request. Yet since the SJRA must establish the evidence is
conclusive on its claim the Attorney General made a previous determination about
the information covered in Yollick’s email, the question is not whether Page’s letter
offers some evidence from some other factfinder might have ruled in the SJRA’s
favor in a trial over whether the SJRA complied with the duties it has to members of
the public in responding to requests seeking information regulated by the Act. For
two reasons, we conclude the answer to Page’s October 4 letter does not rise to the
level of conclusive proof showing the Attorney General had issued a previous ruling
that applies to the same information at issue in the appeal.
First, as the trier of fact, the trial court had the right to give the statements in
Page’s letter of October 4, 2017 little to no weight since the statements in his letter
22 are hearsay.35 When trial courts act as triers of fact, they may decide how much
weight to assign the evidence admitted during a trial. 36 And the statements in Page’s
letter about what the SJRA viewed in the April 2017 letter ruling to mean are not
just hearsay, they are double hearsay given that Page did not testify in the trial.37 So
we cannot say the trial court’s only choice in deciding how to weigh Page’s letter
but to accept the representations in the letter as conclusive proof.38 Since Yollick
was the prevailing party in the trial, we must assume the trial court exercised its
discretion by giving Page’s letter any or little credit when it resolved the disputed
issues of fact in the trial. 39 As the factfinder, that was the trial court’s prerogative
even if the statements in the letter were never contradicted or impeached.40 And the
35Tex. R. Evid. 801(d). 36Wilson, 168 S.W.3d at 802. 37See Tex. R. Evid. 602. 38See Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 378 (Tex. 2019) (declining to assign double hearsay in an affidavit any weight); Wiggins v. Overstreet, 962 S.W.2d 198, 201-202 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (concluding that hearsay in letters could not serve as conclusive proof); Catherman v. First State Bank of Smithville, 796 S.W.2d 299, 302 (Tex. App.— Austin 1990, no writ) (same). 39See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (explaining
that when courts review evidence in the light favoring the factfinder’s verdict, it must assume the factfinder “credited testimony favorable to the verdict and disbelieved testimony contrary to it”); id. at 820 (noting that factfinders “may disregard even uncontradicted and unimpeached testimony” in trials unless it “is conclusively negated by undisputed facts”). 40Id.
23 SJRA produced no evidence to corroborate the statements in Page’s letter, as the
SJRA did not call any witnesses in the trial.
Second, Yollick pointed out that he was not seeking all the information in the
Plan, suggesting that the fact the request he made represents a request for
information different in degree and kind from one seeking a complete protocol for a
dam. Of course, we acknowledge that a factfinder’s decision to assign little or no
weight to some of the evidence in a trial must be reasonable under the circumstances
shown in the record. 41 But here, we cannot say the trial court’s decision to assign
Page’s letter little to no weight was unreasonable under the circumstances shown
here and given the trial court’s role as the arbiter of the facts. For instance, the
Attorney General’s letter of April 2017 warns the SJRA it cannot rely on the April
2017 letter ruling should the facts or circumstances relevant to some future request
change. The warning states:
This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances.
In comparing the information Yollick argued his request covers and comparing it to
the information covered by a request for complete protocol for a dam, the trial court
41Id.
24 could have reasonably concluded on this record that the circumstances of the request
reached information relevant to exceptions the Attorney General had never been
asked to address based on the testimony the trial court found to be credible in the
trial. Simply put, Yollick make it clear that he was asking for less than all the
information in the Plan. It’s also unclear on this record whether the April 2017 letter
constitutes a ruling that even addresses whether exceptions in the Act apply to the
information at issue in the appeal.
The SJRA relies on two other letters admitted into evidence during the trial to
support its claim that the record proves the Attorney General’s Office had
determined the SJRA could withhold the Plan. But the remaining two letters the
SJRA relies on, letters from the Attorney General to Page in November and
December 2017, are dated after October 11, 2017. Under section 552.301 of the Act,
the requirement of a previous determination means one before the public entity
refused to comply with someone’s request for information regulated by the Act.42
The ten-day deadline is in section 552.301, and since we construe statutes based on
the intended meaning, the date relevant to deciding whether something is previous
42Tex.Gov’t Code Ann. § 552.301(a) (requiring previous determination); id. § 552.301(b), (d) (providing ten-day deadlines for the referral and an explanation to the person who requested the information to explain the entity is awaiting a decision from the Attorney General on the information covered by the request). 25 under the Act is measured by the deadline the Act established for the public entity
to respond to the citizen’s request seeking information regulated by the Act.43 By
placing the duty of referral and deadline to respond in the same section, it’s clear to
us that the term previous determination means a determination before the deadline
requiring the entity to explain to the person seeking access to regulated information
why the information is being withheld. 44
Conclusion
We disagree with the SJRA’s claim that the record contains legally
insufficient evidence to support the trial court’s judgment. We also disagree with the
SJRA that the trial court misinterpreted the Act. 45 For these reasons, the trial court’s
judgment is
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on August 17, 2020 Opinion Delivered March 18, 2021
Before Golemon, C.J., Horton and Johnson, JJ.
43Id. 44Tex. Gov’t Code Ann. § 552.301(a). 45See id. § 552.326. 26