the City of Houston, Texas v. Ken Paxton, Attorney General of Texas

Opinion

ACCEPTED

03-15-00093-CV

5024067

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/24/2015 1:20:30 PM

JEFFREY D. KYLE

CLERK

No. 03-15-00093-CV

FILED IN

3rd COURT OF APPEALS

In the Court of Appeals for the AUSTIN, TEXAS Third District of Texas at Austin 4/24/2015 1:20:30 PM JEFFREY D. KYLE

Clerk

THE CITY OF HOUSTON,

Appellant

v.

KEN PAXTON, ATTORNEY GENERAL OF TEXAS, Appellee

On Appeal from the 250th Judicial District Court Travis County, Texas

Trial Court Case No. D-1-GV-14-000227

Unopposed Motion for Extension of Time to File Brief of Appellant or, Alternatively, to Adjust the Briefing Deadline Upon Completion of the Clerk’s Record

To the Honorable Third Court of Appeals:

Pursuant to Texas Rule of Appellate Procedure 38.6(d), Appellant, the City of Houston files this motion for a 30-day extension of time to file its Brief of Appellant or, alternatively, to adjust the briefing deadline upon completion of the Clerk’s Record pursuant to Texas Rule of Appellate Procedure 38.6(a)(1), and in support respectfully would show:

1. The Clerk’s Record was filed on March 25, 2015, generating a due date for Appellant’s Brief of April 24, 2015. A request for Supplemental Clerk’s Record was filed in the Travis County District Court on April 23, 2015.

2. The undersigned has a busy trial and appellate practice with the City.

Among other briefs and commitments the undersigned has upcoming are: 1) Randall Kallinen & Paul Kubosh v. City of Houston, No. 14-0015, in the Supreme Court of Texas, Motion for Rehearing due May 6, 2015;

and 2) Gatesco Q.M., Ltd. d/b/a Quail Meadows Apartments v. City of Houston, Cause No. 14-14-01017-CV, in the Fourteenth Court of Appeals, Brief of Appellee due May 13, 2015.

3. This motion is not being brought for delay, but so that justice may be done.

4. This motion is unopposed. 5. Alternatively, Appellant wishes to bring to the Court’s attention that the Clerk’s Record in this appeal is incomplete, and requests that the Court adjust the briefing deadline accordingly upon completion. Certain documents were submitted to the trial court for in camera inspection.

Those documents were attached to Defendant’s Cross-Motion for Summary Judgment as Exhibit C. Pursuant to Texas Government Code

3

section 552.3221 (attached as Exhibit A), this “Information at Issue”

forms the basis of this lawsuit and appeal and is necessary for the adjudication of the case. Sections 552.3221(c)(2) and (3) mandate that the “Information at Issue” shall be maintained in a sealed envelope and shall be transmitted by the clerk of the court to the court of appeals as part of the clerk’s record. To date, this “Information at Issue” has not been transmitted to the Third Court of Appeals, and, therefore, the Clerk’s Record is incomplete.

For these reasons, Appellant, the City of Houston, respectfully asks that the Court grant a 30-day extension of time to file its Brief of Appellant, or, alternatively, adjust the briefing deadline accordingly upon completion of the Clerk’s Record, and grant any other relief to which it is entitled.

4

Respectfully submitted,

DONNA L. EDMUNDSON

City Attorney

JUDITH L. RAMSEY

Chief, General Litigation Section

By: /s/ Mary Beth Stevenson Mary E. (“Mary Beth”) Stevenson Assistant City Attorney

SBN: 24072366

CITY OF HOUSTON LEGAL

DEPARTMENT

900 Bagby, 4th Floor

Houston, Texas 77002

Telephone: 832.393.6491

Facsimile: 832.393.6259

marybeth.stevenson@houstontx.gov

Attorneys for Appellant City of Houston

Certificate of Conference

I hereby certify that I have conferred with Appellee’s counsel and that Appellee is unopposed to this motion.

/s/ Mary Beth Stevenson

Mary E. (“Mary Beth”) Stevenson

5

Certificate of Service

I hereby certify that on this 24th day of April, 2015, a true and correct copy of the foregoing has been served on counsel below via e-service.

Matthew R. Entsminger Assistant Attorney General Open Records Litigation P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 matthew.entsminger@texasattorneygeneral.gov

Attorney for Appellee

/s/ Mary Beth Stevenson

Mary E. (“Mary Beth”) Stevenson

EXHIBIT A § 552.3221. In Camera Inspection of Information, TX GOVT § 552.3221

Vernon’s Texas Statutes and Codes Annotated Government Code (Refs & Annos)

Title 5. Open Government; Ethics (Refs & Annos)

Subtitle A. Open Government Chapter 552. Public Information (Refs & Annos)

Subchapter H. Civil Enforcement

V.T.C.A., Government Code § 552.3221 § 552.3221. In Camera Inspection of Information

Effective: September 1, 2013 Currentness

(a) In any suit filed under this chapter, the information at issue may be filed with the court for in camera inspection as is necessary for the adjudication of the case.

(b) Upon receipt of the information at issue for in camera inspection, the court shall enter an order that prevents release to or access by any person other than the court, a reviewing court of appeals, or parties permitted to inspect the information pursuant to a protective order. The order shall further note the filing date and time.

(c) The information at issue filed with the court for in camera inspection shall be:

(1) appended to the order and transmitted by the court to the clerk for filing as “information at issue”;

(2) maintained in a sealed envelope or in a manner that precludes disclosure of the information; and

(3) transmitted by the clerk to any court of appeal as part of the clerk’s record.

(d) Information filed with the court under this section does not constitute “court records” within the meaning of Rule 76a, Texas Rules of Civil Procedure, and shall not be made available by the clerk or any custodian of record for public inspection.

(e) For purposes of this section, “information at issue” is defined as information held by a governmental body that forms the basis of a suit under this chapter.

Credits Added by Acts 2013, 83rd Leg., ch. 461 (S.B. 983), § 1, eff. Sept. 1, 2013.

V. T. C. A., Government Code § 552.3221, TX GOVT § 552.3221 Current through the end of the 2013 Third Called Session of the 83rd Legislature End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

§ 552.3221. In Camera Inspection of Information, TX GOVT § 552.3221

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2