Reversed and Remanded and Opinion filed October 27, 2011.




                                          In The

                       Fourteenth Court of Appeals

                                   NO. 14-10-01046-CV

      LOUIS TAYLOR GUTHRIE AND MARCUS STAUDT, Appellants

                                         V.

   ADRIAN GARCIA, SHERIFF OF HARRIS COUNTY, TEXAS, Appellee

                        On Appeal from the 164th District Court
                                Harris County, Texas
                          Trial Court Cause No. 2010-28404


                                       OPINION

      Two individuals sought mandamus relief against a sheriff in his official capacity
under Texas Government Code section 552.321. Though the individuals did not seek relief
against the county that the sheriff serves, the individuals had the county served with a copy
of their petition. The trial court granted the sheriff’s summary-judgment motion, in which
the sheriff asserted that the claims against him were redundant of the claims against the
county. Because the individuals did not seek relief against the county and because the
Supreme Court of Texas has held that the proper party against whom mandamus should be
sought under section 552.321 is the officer for public information rather than the
governmental body served by that officer, we reverse and remand.
                       I. FACTUAL AND PROCEDURAL BACKGROUND

       Appellants Louis Taylor Guthrie and Marcus Staudt (hereinafter collectively the
―Requestors‖) filed suit in the trial court seeking mandamus relief against appellee Adrian
Garcia, in his official capacity as Sheriff of Harris County, Texas (hereinafter the ―Sheriff‖).
The Requestors sought writs of mandamus compelling the Sheriff to make available to the
public various categories of allegedly public information. The Requestors alleged that the
Sheriff is the officer for public information regarding the information that is the basis of
their requested mandamus relief. See TEX. GOV’T CODE ANN. § 552.201(b) (West 2004)
(―each elected county officer is the officer for public information . . . of the information
created or received by that county officer’s office‖). The Requestors sought only mandamus
relief against the Sheriff under Texas Government Code section 552.321, part of the Texas
Public Information Act. The Requestors did not seek any relief against Harris County, nor
did they state in their petition that Harris County was a defendant or respondent.
Nonetheless, for reasons not clear from the record, the Requestors had Harris County served
with a copy of their petition. The Sheriff and Harris County each filed an answer.

       The Sheriff then filed a motion for summary judgment asserting a single ground—
that the claims against the Sheriff were redundant of the claims against Harris County. The
trial court granted this motion and dismissed all claims against the Sheriff. The Requestors
nonsuited any claims they had against Harris County. On appeal, the Requestors assert that
the trial court erred in granting summary judgment.

                                        II. ANALYSIS

       This court can only affirm the trial court’s summary judgment based upon a ground
asserted in the Sheriff’s summary-judgment motion. See Stiles v. Resolution Trust Corp.,
867 S.W.2d 24, 26 (Tex. 1993). In his motion, the Sheriff asserted only that, because a suit
against a governmental official in his official capacity is the same as a suit against the
governmental entity he serves, an official-capacity suit against the government official is
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redundant and unnecessary when the plaintiffs also have sued the governmental entity.
Under this ground, the Sheriff does not argue that, as a matter of law, the Requestors could
not obtain mandamus relief against the Sheriff under Texas Government Code section
552.321 if they had sued only the Sheriff.1                  Instead, the Sheriff argues that seeking
mandamus relief against the Sheriff is redundant of the Requestors’ claims for mandamus
relief against Harris County.

          Significantly, no redundancy was possible in the case under review because the
Requestors sought mandamus relief only against the Sheriff. Throughout their live petition,
the Requestors sought relief only against ―Adrian Garcia, Sheriff of Harris County, Texas‖
or against ―Respondent Garcia.‖ In their live petition, the Requestors sought no relief
against Harris County, nor did they state that Harris County was a respondent or defendant.
The only other mention of Harris County in the petition, other than in the titles of Harris
County officials or in specifying the suit’s venue, is as follows: ―Harris County, Texas may
be served by and through the Harris County Judge, the Honorable Ed Emmett, [address and
contact information for Judge Emmett].‖ The record reflects that a copy of the petition was
served on Judge Emmett. We presume for the sake of argument that Harris County was a
defendant or respondent in the case under review.

          In support of his sole summary-judgment ground, the Sheriff relied upon various
cases in which a plaintiff asserted damage claims against both a governmental entity and an
employee of that entity in his official capacity. See, e.g., Walston v. City of Port Neches,
980 F. Supp. 872, 878 (E.D. Tex. 1997) (holding that 42 U.S.C. § 1983 suit against police
chief in his official capacity was redundant and unnecessary because plaintiff had also
asserted these claims against the city which employed him and which would pay any
judgment against the police chief). Even if Harris County were a defendant in the case
under review, the Requestors sought no relief against Harris County. The cases upon which
the Sheriff relies are not on point because in those cases the plaintiff sought relief against

 1
     All statutory references in this opinion are to the Texas Government Code, unless otherwise specified.
                                                       3
both the governmental entity and its employee. See id. In the case under review, the
Requestors sought relief only against the Sheriff, so the Sheriff’s redundancy argument
lacks merit.

       Additionally, the cases cited by the Sheriff are not on point because those cases
involve damage claims rather than claims for mandamus relief under section 552.321. See
id. In the case under review, the Requestors did not seek damages; rather, they sought
mandamus relief. Generally, asserting a particular claim against a governmental official in
his official capacity is the same as asserting that claim against the governmental entity with
which the official is affiliated. See Winogard v. Clear Lake City Water Auth., 811 S.W.3d
147, 161–62 (Tex. App.—Houston [1st Dist.] 1991, writ denied). Nonetheless, courts have
recognized a distinction between suing the governmental entity and suing the official in his
official capacity in cases involving nonmonetary relief. See City of El Paso v. Heinrich, 284
S.W.3d 366, 372–76 (Tex. 2009) (concluding that governmental immunity under Texas law
bars ultra vires suits for injunctive relief against governmental entities but not against
officials who work for these entities in their official capacities); Tex. Dep’t of Transp. v.
Esters, 343 S.W.3d 226, 231–33 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding
that Eleventh Amendment immunity bars equitable relief under Ex parte Young, 209 U.S.
123 (1908) and its progeny against a state agency but not against officials of that state
agency in their official capacities).

       In a case in which the Supreme Court of Texas granted mandamus relief under
section 552.321, our high court noted that mandamus claims against a governmental body
generally would be equivalent to mandamus claims against that body’s public information
           2
officer.       See A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 681 (Tex. 1995).
Nonetheless, our high court held that the ―proper party‖ against whom mandamus should be

 2
   The version of chapter 552 applicable in A & T Consultants used the term ―officer for public records‖
 rather than ―officer for public information,‖ but the relevant statutes were substantially similar to the
 version of chapter 552 applicable to the case under review. See Act of May 29, 1995, 74th Leg., R.S., ch.
 1035, §§ 2,14,15,24, 1995 Tex. Gen. Laws 5127, 5128, 5133–34, 5140; A & T Consultants, Inc., 904
 S.W.2d at 672–73.
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sought under section 552.321 is the officer for public information rather than the
governmental body.3 See id. at 672–73, 681. The supreme court based its conclusion upon
the duty that the officer for public information has to make public information available
under sections 552.203 and 552.221(a). See id.; TEX. GOV’T CODE ANN. § 552.203 (West
2004) (―each officer for public information . . . shall . . . make public information available
for public inspection and copying‖); TEX. GOV’T CODE ANN. § 552.221(a) (West 2004) (―an
officer for public information of a governmental body shall promptly produce public
information for inspection, duplication, or both on application by any person to the officer‖).
Therefore, even if the Requestors had sought mandamus relief against both the Sheriff and
Harris County and even if doing so meant that one of these claims must fail as a matter of
law, we conclude that the claims against Harris County would fail as a matter of law, based
upon our high court’s opinion in A & T Consultants, Inc. See 904 S.W.2d at 672–73, 681.

       Under the familiar standard of review for traditional summary-judgment motions, we
conclude that the Sheriff’s only summary-judgment ground lacks merit. See Poplin v.
Amerisure Mut. Ins. Co., 321 S.W.3d 909, 911–12 (Tex. App.—Houston [14th Dist.] 2010,
pet. denied). Accordingly, we sustain the Requestors’ appellate issue, reverse the trial
court’s judgment, and remand for further proceedings consistent with this opinion.




                                       /s/     Kem Thompson Frost
                                               Justice


Panel consists of Justices Frost, Jamison, and McCally.




 3
   The dissenting justices in A & T Consultants, Inc. asserted that the Texas Legislature provides for
 mandamus relief under section 552.321 against only a ―governmental body,‖ a term defined to include
 only entities and not individuals or officials. See TEX. GOV’T CODE ANN. §§ 552.003(1), 552.321(a)
 (West 2004); A & T Consultants, Inc., 904 S.W.2d at 683–85 (Hecht, J., dissenting).
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