                                                                                       ACCEPTED
                                                                                  13-15-00342-CV
                                                                  THIRTEENTH COURT OF APPEALS
                                                                         CORPUS CHRISTI, TEXAS
                                                                            12/29/2015 5:01:53 PM
                                                                                 Dorian E. Ramirez
                                                                                            CLERK



                 No. 13-15-00342-CV
                _____________________________________ FILED IN
                                                 13th COURT OF APPEALS
                Court of Appeals              CORPUS CHRISTI/EDINBURG, TEXAS
                                                 12/29/2015 5:01:53 PM

           Thirteenth District of Texas            DORIAN E. RAMIREZ
                                                          Clerk
                _____________________________________
                    COPANO NGL SERVICES, LLC,
                                                                   Appellant,
                                   V.

          JOHN ASHCRAFT, INDIVIDUALLY AND AS TRUSTEE FOR
              THE JOHN ASHCRAFT FAMILY TRUST 2012,
                                                                    Appellee.
                 _____________________________________
                 On Appeal from Cause No. 15-H-0082
              23rd District Court, Matagorda County, Texas
                   Hon. Ben Hardin, Judge Presiding

                      APPELLANT’S REPLY BRIEF

Charles R. “Skip” Watson, Jr.           Christopher Dove
 State Bar No. 20967500                  State Bar No. 24032138
 cwatson@lockelord.com                   cdove@lockelord.com
Daniel Durell                           Ken McKay
 State Bar No. 24078450                  State Bar No. 13690835
 daniel.durell@lockelord.com             kmckay@lockelord.com
                                        A. Antroy Arreola
LOCKE LORD LLP                           State Bar No. 24006769
600 Congress Avenue, Suite 2200          aarreola@lockelord.com
Austin, Texas 78701                     Harry Holmes Thompson
(512) 305-4700 (Telephone)               State Bar No. 24088527
(512) 305-4800 (Facsimile)               hthompson@lockelord.com
                                        LOCKE LORD LLP
                                        600 Travis Street, Suite 2800
                                        Houston, Texas 77002
                                        (713) 226-1200 (Telephone)
                                        (713) 223-3717 (Facsimile)
                      ATTORNEYS FOR APPELLANT
                                             TABLE OF CONTENTS

                                                                                                                     Page

Index of Authorities ................................................................................................. iii 
Brief of the Argument in Reply ................................................................................. 1 
I.       Section 21.049 and John cannot be rewritten to change the
         unambiguous term “parties” to “landowners.” ................................................ 1 
         A.  The plain language of section 21.049 applies to all “parties,” not
             just landowners. ..........................................................................................2 
         B.  The Supreme Court’s holding that section 21.049 tolls the time for
             the “parties” to object is binding on all courts. ..........................................2 
         C.  The Supreme Court’s policy that drove John — not allowing
             procedural technicalities to bar appeals — is not abandoned to
             benefit landowners......................................................................................5 
II.      The Supreme Court’s holding in John cannot be distinguished,
         watered-down, or limited to its facts. .............................................................. 6 
         A.  The Supreme Court does not write broad holdings for one-of-a-
             kind cases. ...................................................................................................6 
         B.  Actual knowledge will not suffice when the form of notice is
             “mandatory.”...............................................................................................7 
         C.  John does not say whether the parties had “no notice.” .............................9 
III.     E-filing is no substitute for compliance with section 21.049. ......................... 9 
         A.  The e-filing rule did not purport to repeal section 21.049. ......................10 
         B.  There is no evidence of notice by e-service. ............................................11 
IV.      There is no uncertainty of title. ...................................................................... 13 
Conclusion and Prayer ............................................................................................. 14 
Certificate of Compliance ........................................................................................ 16 
Certificate of Service ............................................................................................... 16 




                                                             ii
                                         INDEX OF AUTHORITIES

                                                                                                           Page(s)
CASES
Few v. Charter Oak Fire Ins. Co.,
  463 S.W.2d 424 (Tex. 1971) .............................................................................. 11

Greater Houston P’ship v. Paxton,
  468 S.W.3d 51 (Tex. 2015)................................................................................... 2

In re K.M.S.,
    91 S.W.3d 331 (Tex. 2002)................................................................................... 4

John v. State,
   826 S.W.2d 138 (Tex. 1992) .......................................................................passim

Oncor Elec. Delivery Co. v. Schunke,
  No. 04-13-00067-CV, 2013 WL 6672494 (Tex. App.—San Antonio Dec.
  18, 2013, pet dism’d) ............................................................................................ 4

Roccaforte v. Jefferson County,
  341 S.W.3d 919 (Tex. 2011) ........................................................................5, 8, 9

Shepard v. Ledford,
   926 S.W.2d 405 (Tex. App.—Fort Worth 1996, writ granted) .......................... 12

Tex. Co. v. Charles Clarke & Co.,
   182 S.W. 351 (Tex. Civ. App. 1915, writ dism’d) ............................................. 12

Tex. Dep’t of Transp. v. A.P.I. Pipe and Supply, LLC,
   397 S.W.3d 162 (Tex. 2013) ................................................................................ 3

Tutson v. Upchurch,
   203 S.W.3d 428 (Tex. App.—Amarillo 2006, pet. denied) ............................... 12

Verburgt v. Dorner,
   959 S.W.2d 615 (Tex. 1997) ................................................................................ 5

CONSTITUTION AND STATUTES
TEX. GOV’T CODE 22.004(c) .................................................................................... 10

TEX. PROP. CODE § 21.049 ................................................................................passim

                                                         iii
TEX. R. CIV. P. 11 ..................................................................................................... 12

TEX. R. CIV. P. 21(f)(10) .......................................................................................... 10

OTHER AUTHORITIES
The Supreme Court of Tex., Misc. Docket No. 13-9165, 38 Tex. Reg. 9683,
  (2013) .................................................................................................................. 10




                                                             iv
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

      Ashcraft’s brief teeters on the false premise that liberal construction, which

can ensure a landowner’s right to appeal a condemnation award, can be turned

from a shield into a sword to prevent condemnors from appealing. That radical

proposition is not supported by precedent — instead it requires this Court to

rewrite the plain language of both the controlling statute and the Supreme Court’s

opinion interpreting it.

                           BRIEF OF THE ARGUMENT IN REPLY

I.    Section 21.049 and John cannot be rewritten to change the
      unambiguous term “parties” to “landowners.”

      Liberal construction does not:

      (i)    rewrite plain language of statutes and Supreme Court holdings;
             or

      (ii)   deny parties’ right to appeal.

But that is what Ashcraft is asking this Court to do.

      Lacking case law supporting his contortion of liberal construction, Ashcraft

spends nearly 10,000 words trying to convince this Court to be the first to use the

doctrine of liberal construction to rewrite section 21.049 to keep condemnors out

of court. Ashcraft’s premise that liberal construction means the landowner can bar

the courthouse door simply cannot withstand even cursory scrutiny.




                                          1
      A.     The plain language of section 21.049 applies to all “parties,” not
             just landowners.

      The Legislature’s language precludes rewriting section 21.049 to benefit

only landowners:

      Not later than the next working day after the day the decision is filed,
      the clerk shall send notice of the decision by certified or registered
      United States mail [] to the parties in the proceeding, or to their
      attorneys…

TEX. PROP. CODE §21.049 (emphasis added).

      Simply    put,   liberal   construction   cannot     change   the   Legislature’s

pronouncement that section 21.049 must apply to all “parties” to instead apply to

only one party – the landowner.        “[E]ven a liberal construction must remain

grounded in the statute’s language. . . .” Greater Houston P’ship v. Paxton, 468

S.W.3d 51, 62 (Tex. 2015).        When the relevant portion of the provision is

unambiguous, courts may not apply liberal construction, or “any other extra-textual

construct” to change its meaning. See id. at 67.

      Section 21.049 is unambiguous. It applies to all “parties.” No construction,

“liberal” or otherwise, can change its plain language.

      B.     The Supreme Court’s holding that section 21.049 tolls the time for
             the “parties” to object is binding on all courts.

      Ashcraft spends the bulk of his brief alternately:

      (i)    ignoring the Supreme Court’s holding in John that section
             21.049 tolls filing objection for all “parties”;



                                          2
       (ii)    implying this Court is not bound by the Supreme Court’s
               “judicially-imposed interpretation” of section 21.049; and

       (iii)   attempting to distinguish John as limited to its facts.

Each argument leads this Court into error.

               1.     The Supreme Court’s holding in John is clear — time for
                      filing objections is tolled for “parties,” not just landowners.

       There is nothing unclear about the Supreme Court’s holding in John v. State:

       [T]his court holds that, in a condemnation proceeding, the parties’
       time to object to the special commissioners’ award is tolled until the
       clerk sends the required notice pursuant to section 21.049 of the
       Texas Property Code.

826 S.W.2d 138, 139 (Tex. 1992) (emphasis added). Ashcraft’s brief does not

mention the Supreme Court’s holding. Instead his brief focuses on why the Court

applied its holding to the landowner that missed the section 21.018 deadline.

While liberal construction certainly supports the Court’s holding, it is hardly

necessary in order for landowners to be “parties[] [whose] time to object . . . is

tolled until the clerk sends the required notice” prescribed by section 21.049. See

id. The Supreme Court did not hold that “parties” means “only landowners,” or

that “notice pursuant to section 21.049” means any form of notice. Instead, the

Supreme Court has not wavered from its holding in John that the “parties’” time to

object is tolled until section 21.049 notice is given.1


1 That is why the Supreme Court repeated that jurisdiction over an objection to a condemnation
award is tolled “if the parties are not given proper notice.” Tex. Dept. of Transp. v. A.P.I. Pipe
and Supply, LLC, 397 S.W.3d 162, 167 n.18 (Tex. 2013) (citing John, 826 S.W.2d at 141 n.5).


                                                3
             2.    The Supreme Court’s interpretation is the law of this State.

      No doubt because John’s holding is both controlling and dispositive,

Ashcraft repeatedly implies that this Court is free to ignore it as “a judicial, not a

statutory, construct” of section 21.049 imposed by the Supreme Court, rather than

by the Legislature. (AppelleeBr:22, 38) (emphasis in original).) But, the Supreme

Court is the final authority concerning the meaning of all legislation. Its holdings

are the law of this State and are binding on this Court. See In re K.M.S., 91 S.W.3d

331, 331 (Tex. 2002) (per curiam) (admonishing a court of appeals for refusing to

follow Texas Supreme Court precedent: “courts of appeals are not free to disregard

pronouncements from this Court”).

      That is why rather than ignoring John, the court of appeals in Oncor Electric

Delivery Co. v. Schunke, recognized that John controlled its holding that hand-

delivery of actual notice of a commissioner’s award did not satisfy section 21.049’s

requirement that the clerk must send notice by certified mail. No. 04-13-00067-

CV, 2013 WL 6672494, at *3-*4 (Tex. App.—San Antonio Dec. 18, 2013, pet.

dism’d) (“[A]ny admission concerning the date the commissioners’ award was

filed does not change the fact that the time to file objections was tolled until the

clerk mailed notice to the parties or their attorneys as required by section 21.049”).

      This Honorable Court should be wary of any invitation to ignore an

unambiguous Supreme Court holding construing an unambiguous statute.



                                          4
      C.    The Supreme Court’s policy that drove John — not allowing
            procedural technicalities to bar appeals — is not abandoned to
            benefit landowners.

      The Supreme Court’s holding that section 21.049 tolls the time for “parties”

to object to commissioners’ awards “until the clerk sends the required notice

pursuant to section 21.049,” John, 826 S.W.2d at 139, follows the Supreme

Court’s long-standing policy that “the right of appeal should not be lost due to

procedural technicalities.” See Roccaforte v. Jefferson Cnty, 341 S.W.3d 919, 924

(Tex. 2011); see also Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997) (“This

Court has never wavered from the principle that appellate courts should not

dismiss an appeal for a procedural defect whenever any arguable interpretation”

would preserve the appeal.).

      Yet, Ashcraft boldly says that such “liberal constitution (sic) is afforded to

the landowner, not the condemning party.” (AppelleeBr:44.) The problem of

course, is that no court has ever transformed liberal construction that ensures a

landowner’s appeal, into strict construction to ensure procedural technicalities

deny an appeal.

      Simply put, section 21.049 says the notice it specifies must be given to the

“parties.” And the Supreme Court squarely held that the “parties’” time to object

is tolled until that notice is given in the form prescribed by section 21.049. There

is no ambiguity in the statute or in the Supreme Court’s holding construing it. And



                                         5
there is no authority holding to the contrary. This Court should be wary of any

request to create such a conflict.

II.      The Supreme Court’s holding in John cannot be distinguished, watered-
         down, or limited to its facts.

         Ashcraft is thus forced to try to limit John to its facts or create exceptions

where none exist.

         A.    The Supreme Court does not write broad holdings for one-of-a-
               kind cases.

         John’s holding resolved once-and-for-all Ashcraft’s “lynchpin issue” of

when timely objections must be made. (See AppelleeBr:31.) So Ashcraft tries to

limit John to its facts because he does not like the Supreme Court’s holding that

the parties’ time to object is tolled until the clerk sends the required notice pursuant

to section 21.049. He characterizes John as applying to landowners who receive

“no notice” of a condemnation awards. (AppelleeBr: 22, 23, 28, 34, 47.)

         But the Supreme Court only decides cases with broad significance to the

State’s jurisprudence:

       John’s holding, like section 21.049, expressly applies to all “parties”
        until notice in the form required by the statute is given; and

       nowhere does John say the landowner had “no notice” of the
        condemnation award or that other forms of notice will suffice.




                                            6
      B.    Actual knowledge will not suffice when the form of notice is
            “mandatory.”

      Ashcraft’s protracted attempt to substitute “actual knowledge” of the

commissioners’ award for notice in the form required by the Legislature,

(AppelleeBr:35-46), flounders because it must rely on cases in which statutory

notice provisions are not “regarded as mandatory.” (AppelleeBr:41 (emphasis

added).)

      In contrast, John turned on the Supreme Court’s holding that “this section

must be construed as mandatory.” See John at 140 (emphasis added), and n.3.

Thus, because “the language of the statute is clear and unambiguous, it should be

enforced as written.” Id. (emphasis added). “Therefore, in condemnation cases,

the clerk must comply with the notice provisions.” Id.

            1.     “Reasonable strictness” does not permit substitute forms of
                   service.

      Thus, Ashcraft cannot change John’s holding by pointing to a footnote

saying the clerk failed to follow section 21.049’s mailing requirement with

“reasonable strictness.” (AppelleeBr:39 (citing John at 141 n.4.).) The Court’s

reference to “reasonable strictness” in footnote dicta did not say that any other

form of notice can substitute for “the required notice pursuant to section 21.049.”

John at 139. Read in context, note 4 creates no such exception:




                                        7
       First, immediately after stating that notice provisions require reasonable

strictness, the Court held that the clerk “failed to follow the notice requirement

with reasonable strictness” because the notice required by section 21.049 was sent

“after their time to object had lapsed.” Id. at 141 n.4 (emphasis added). That is

what happened here.

       Second, any doubt that reasonable strictness might not require the form of

notice “required . . . pursuant to section 21.049” was dispelled when the Court

reaffirmed in the next footnote that it was the clerk’s failure to send the notice that

tolls the time to object. Id. at 141 n.5.

              2.    Personal service will not suffice.

       Similarly misplaced is Ashcraft’s reliance on Roccaforte v. Jefferson

County, 341 S.W.3d 919 (Tex. 2011) as creating a personal service exception to

section 21.049’s requirement. (AppelleeBr:39-41.) It misses the mark on two

critical points.

       First, Roccaforte did not involve section 21.049 and there was no analysis or

holding that the language of the statute in question elevated it from merely

“directive” (which allows alternative compliance) to “mandatory,” (which does not

allow alternative compliance). See John at 140-41.




                                            8
       Second, Roccaforte is actually an example of how the overarching policy

that “the right of appeal should not be lost to procedural technicalities” is imposed

to prevent (not to cause) loss of access to the courts. Roccaforte at 924, 926.

       C.    John does not say whether the parties had “no notice.”

       To bolster his claim that actual knowledge should substitute for the

“mandatory” notice in the form prescribed by section 21.049, Ashcraft repeatedly

claims the landowner in John had no notice of the award. (AppelleeBr:22, 23, 28,

34, 46.) But John says no such thing. If it mattered whether a party had no notice

the Supreme Court would surely have said so.

       To sum up: both section 21.049 and John are clear and unambiguous. The

time for filing objections is tolled for all “parties.” No amount of distinguishing or

parsing can alter the clear rule of law intended to clarify the duties of all parties to

ensure that rights to appeal will not be lost on procedural technicalities. Ashcraft is

inviting this Court to overrule the Legislature’s unambiguous language and the

controlling interpretation by the Supreme Court.

III.   E-filing is no substitute for compliance with section 21.049.

       Failing to demonstrate that the Legislature did not intend for section 21.049

to apply to both “parties” and that the Supreme Court did not intend for the

statute’s “mandatory” certified mail notice requirement to “toll” the time for the

statutes filing objections, Ashcraft claims that the Supreme Court intended for its



                                           9
e-filing Rule of Civil Procedure to trump the Legislature’s requirements in section

21.049. (AppelleeBr:52-56.) Ashcraft’s end-run around, the statute’s “mandatory”

notice requirement is condemned by these barriers:

      A.      The e-filing rule did not purport to repeal section 21.049.

      Buried at the bottom of footnote 4, Ashcraft’s brief notes the obvious – in a

conflict between statutes and rules, “the statute prevails” unless the rule . . .

“repeals the statute” as provided by section 22.004 of the Texas Government Code.

(AppelleeBr:54 n.4). That did not happen here.

      Under section 22.004 of the Texas Government Code, for a rule to repeal a

statute the Texas Supreme Court is required to “file with the secretary of state a list

of each article or section of general law or each part of an article or section of

general law that is repealed or modified in any way.” See TEX. GOV’T CODE

§22.004(c).

      Section 21.049 of the Texas Property Code was not included in the list of

statutes repealed by the adoption of the amendments to Rule 21 of the Texas Rules

of Civil Procedure. See The Supreme Court of Tex., Misc. Docket No. 13-9165,

38 Tex. Reg. 9683, 9683-84 (2013) (adopting amendments to Rule 21 of the Texas

Rules of Civil Procedure). Accordingly, the mandatory notice requirements of

section 21.049 control over Rule 21(f)(10) of the Texas Rules of Civil Procedure.




                                          10
See Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424, 425 (Tex. 1971) (“[Where

a] rule of the court conflicts with a legislative enactment, the rule must yield.”).

       Thus, as a matter of law, e-filing did not repeal the mandatory form of notice

required by section 21.049. Ashcraft is asking this Court to violate the separation

of powers at the heart of our Constitution.

       B.     There is no evidence of notice by e-service.

       Equally fatal to Ashcraft’s judgment is his inability to point to evidence

supporting the bogus legal positions he is asking this Court to take.

       First, and most telling, Ashcraft consistently cites only to findings of fact in

response to Copano’s challenge that there is no evidence to support those findings

of fact. There is simply no evidence to support Ashcraft’s claim (and the trial

court’s findings) that Copano’s counsel received notice of the commissioner’s

award from the clerk by e-service. If such evidence existed it was Ashcraft’s duty

to get it into the record. He did not.

       Second, Ashcraft’s attempt to shift the burden of proof to Copano, to “deny”

his unproven claim that the clerk e-served notice of the award, (AppelleeBr:43)

should be seen for what it is – an admission of his failure to satisfy the legal

sufficiency standard of review. Absence of evidence is no evidence.2

2
  A “case cannot be sustained when it depends wholly upon the failure of defendant, who is
shown to be in possession of the facts, to disprove plaintiff’s claim. To hold otherwise would be
to abrogate the rule which places the burden upon a plaintiff to make out his case. Until this
burden is discharged by evidence produced by plaintiff sufficient prima facie to make out the

                                               11
       Third, Ashcraft violates the fundamental requirements for stipulations by

attempting to transform a “discussion” at a hearing where no record was kept into

“stipulations” memorialized in findings of fact. (AppelleeBr:57.) Stipulations are

governed by Rule 11 of the Texas Rules of Civil Procedure. See, e.g., Shepherd v.

Ledford, 926 S.W.2d 405, 410 (Tex. App.—Fort Worth 1996, writ granted) aff’d

and remanded, 962 S.W.2d 28 (Tex. 1998); see also Tutson v. Upchurch, 203

S.W.3d 428, 431 (Tex. App.—Amarillo 2006, pet. denied) (providing that a

concession that did not comport with Rule 11 was unenforceable).                       Rule 11

requires a stipulation either to be in writing, signed, and filed of record, or made in

open court and entered of record. See TEX. R. CIV. P. 11.

       “Parties in open court are allowed to narrow the issues presented to the trial

court, provided they do so by a signed written agreement that is filed in the trial

record. A ‘stipulation’ that is made pursuant to rule 11 is defined as an agreement,

admission, or concession made in a judicial proceeding by the parties or their

attorneys about a matter that is incident to the trial.” Shepherd, 926 S.W.2d at 410

(internal citations omitted) (emphasis added).




case alleged by him, the defendant is not required to offer any evidence, and his failure to do so
cannot, under any circumstances, be regarded as any evidence of the truth of plaintiffs claim.”
Tex. Co. v. Charles Clarke & Co., 182 S.W. 351, 353-54 (Tex. Civ. App. 1915, writ dism’d).


                                               12
IV.   There is no uncertainty of title.

      Ashcraft’s ultimate argument, that interpreting section 21.049 and John as

written will open the floodgates of “title uncertainty,” is belied by the last quarter

century of practice under John (and by common sense). (See AppelleeBr:50-51.)

      Titles are no more uncertain today than they were in 1992 when John tolled

filing objections until district clerks comply with the mandatory duty imposed by

section 21.049. The bench and bar alike have long known that the receipt of notice

by certified mail starts the clock for objection. And all parties, in addition to the

judge that appointed the commissioners, have an interest in seeing that the clerk

does her job so judicial proceedings can either enter judgment on the award or

challenge it.

      That is why Copano went to the trouble of literally spelling out the clerk’s

duties in bold-face typeset. (CR:29.) This is not a case of a condemnor laying

behind a log to achieve some imagined advantage. This case is an attempt to bar

an appeal by using a procedural technicality that was eliminated by the Supreme

Court nearly 25 years ago.




                                          13
                            CONCLUSION AND PRAYER

      Ashcraft failed to produce legally sufficient evidence to support the trial

court’s denial of jurisdiction. Denial of jurisdiction was prohibited by the plain

language of section 21.049 and Supreme Court precedent construing it. Copano

was entitled to rely on the Supreme Court’s unequivocal holding that the time for

filing objections was tolled for all parties. Mr. Ashcraft is not just inviting this

Court to snub unambiguous legislation and controlling Supreme Court precedent –

he is inviting this Court to do so in order to prevent judicial review that is at the

heart of Texas citizens’ rights to judicial redress. The trial court’s judgment and

order must be reversed.

                                          Respectfully submitted,

                                          LOCKE LORD LLP

                                      By: /s/ Charles R. “Skip” Watson, Jr.
                                         Charles R. “Skip” Watson, Jr.
                                          State Bar No. 20967500
                                          cwatson@lockelord.com
                                         Daniel Durell
                                          State Bar No. 24078450
                                          daniel.durell@lockelord.com
                                         600 Congress Avenue, Suite 2200
                                         Austin, Texas 78701
                                         (512) 305-4700 (Telephone)
                                         (512) 305-4800 (Facsimile)




                                         14
 Christopher Dove
  State Bar No. 24032138
  cdove@lockelord.com
 Ken McKay
  State Bar No. 13690835
  kmckay@lockelord.com
 A. Antroy Arreola
  State Bar No. 24006769
  aarreola@1ockelord.com
 Harry Holmes Thompson
  State Bar No. 24088527
  hthompson@lockelord.com
 LOCKE LORD LLP
 600 Travis Street, Suite 2800
 Houston, Texas 77002
 (713) 226-1200 (Telephone)
 (713) 223-3717 (Facsimile)

 COUNSEL FOR APPELLANT




15
                          CERTIFICATE OF COMPLIANCE

      I certify that this Reply Brief contains 3,047 words (excluding the sections

excepted under Texas Rule of Appellate Procedure 9.4(i)(1)).

                                             /s/ Charles R. “Skip”Watson, Jr.
                                                  Charles R. “Skip” Watson, Jr.




                            CERTIFICATE OF SERVICE

      I hereby certify that on December 29, 2015, a true and correct copy of the

foregoing was served via EFileTx.Gov e-service upon the following:

   Vincent L. Marable III                     John T. McDowell
   trippmarable@sbcglobal.net                 jtm@houstontrialattorneys.com
   PAUL WEBB, P.C.                            Kacy J. Shindler
   221 N. Houston                             ks@houstontrialattorneys.com
   Wharton, Texas 77488                       MCDOWELL WELLS, LLP
   (979) 532-5331 (Telephone)                 603 Avondale Street
   (979) 532-2902 (Facsimile)                 Houston, Texas 77006
                                              (713) 655-9595 (Telephone)
                                              (713) 655-7868 (Facsimile)
   Danny Shindler
   dwshindler@sbcglobal.net
   MCDOWELL WELLS, LLP
   2232 Avenue G
   Bay City, Texas 77414
   (979) 245-4666 (Telephone)
   (979) 244-5342 (Facsimile)

   Counsel for Appellee

                                             /s/ Charles R. “Skip” Watson, Jr.
                                                Charles R. “Skip” Watson, Jr.



                                        16
HYPERLINKED MATERIAL
Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

                                                                    Nonprofit organization that received public
                                                                    funds for services provided to city under
                    468 S.W.3d 51
                                                                    quid pro quo contract, which services were
                Supreme Court of Texas.
                                                                    designed enhance economic development, was
       Greater Houston Partnership, Petitioner,                     not “supported in whole or in part by public
                         v.                                         funds,” and thus, was not “government body,”
        Ken Paxton, Texas Attorney General;                         within meaning of Texas Public Information Act
                                                                    (TPIA); funds received from city constituted
           and Jim Jenkins, Respondents.
                                                                    compensation for services rendered under
       No. 13–0745 | Argued March 25, 2015                          contract, organization received only small
       | OPINION DELIVERED: June 26, 2015                           portion of its annual revenues from contract,
                                                                    organization would still continue to operate and
Synopsis                                                            perform same services without public funds.
Background: Private nonprofit organization that received            Tex. Gov't Code Ann. § 552.003(1)(A).
public funds from city pursuant to quid pro quo contract
brought action against Attorney General seeking declaratory         Cases that cite this headnote
judgment that it was not “government body” within meaning
of Texas Pubic Information Act. Petitioner whose records      [2]   Records
request organization denied intervened. The District Court,             Judicial enforcement in general
Travis County, 98th Judicial District, Scott H. Jenkins,            326 Records
J., entered judgment for Attorney General and ordered               326II Public Access
disclosure of records requested. Organization appealed, and         326II(B) General Statutory Disclosure
Austin Court of Appeals, 407 S.W.3d 776, affirmed. Petition         Requirements
for review was granted.                                             326k61 Proceedings for Disclosure
                                                                    326k63 Judicial enforcement in general
                                                                    Whether an entity is a “governmental body”
                                                                    whose records are subject to disclosure under the
[Holding:] The Supreme Court, Guzman, J., held that private
                                                                    Texas Public Information Act (TPIA) presents a
organization was not “supported in whole or in part by
                                                                    matter of statutory construction that the appellate
public funds,” and thus, was not “government body,” within
                                                                    court reviews de novo. Tex. Gov't Code Ann. §
meaning of TPIA.
                                                                    552.003(1)(A).

                                                                    Cases that cite this headnote
Reversed and rendered.

Boyd, J., filed dissenting opinion in which Johnson and       [3]   Statutes
Willett, JJ., joined.                                                    Language and intent, will, purpose, or
                                                                    policy
                                                                    Statutes
                                                                         Plain Language; Plain, Ordinary, or
 West Headnotes (15)
                                                                    Common Meaning
                                                                    361 Statutes
 [1]    Records                                                     361III Construction
            Agencies or custodians affected                         361III(A) In General
        326 Records                                                 361k1078 Language
        326II Public Access                                         361k1080 Language and intent, will, purpose, or
        326II(B) General Statutory Disclosure                       policy
        Requirements                                                361 Statutes
        326k51 Agencies or custodians affected                      361III Construction




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        1
Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

        361III(B) Plain Language; Plain, Ordinary, or               court recognizes and applies only the meanings
        Common Meaning                                              that are consistent with the statutory scheme as
        361k1091 In general                                         a whole.
        When interpreting a statute, the court's primary
        objective is to ascertain and give effect to the            Cases that cite this headnote
        Legislature's intent without unduly restricting
        or expanding the act's scope, and the court
                                                              [6]   Statutes
        seeks that intent first and foremost in the plain
                                                                         In general; factors considered
        language of the text.
                                                                    Statutes
        1 Cases that cite this headnote                                  Extrinsic Aids to Construction
                                                                    361 Statutes
                                                                    361III Construction
 [4]    Statutes
                                                                    361III(C) Clarity and Ambiguity; Multiple
             Undefined terms
                                                                    Meanings
        Statutes                                                    361k1103 Resolution of Ambiguity;
             Context                                                Construction of Unclear or Ambiguous Statute or
        361 Statutes                                                Language
        361III Construction                                         361k1104 In general; factors considered
        361III(D) Particular Elements of Language                   361 Statutes
        361k1123 Undefined terms                                    361III Construction
        361 Statutes                                                361III(F) Extrinsic Aids to Construction
        361III Construction                                         361k1171 In general
        361III(E) Statute as a Whole; Relation of Parts to          When interpreting a statute, the court will only
        Whole and to One Another                                    resort to rules of construction or extrinsic aids
        361k1153 Context                                            when a statute's words are ambiguous.
        Undefined terms in a statute are typically given
        their ordinary meaning, but if a different or more          Cases that cite this headnote
        precise definition is apparent from the term's use
        in the context of the statute, the court will apply   [7]   Statutes
        that meaning.                                                    Liberal or strict construction
                                                                    361 Statutes
        1 Cases that cite this headnote
                                                                    361III Construction
                                                                    361III(A) In General
 [5]    Statutes                                                    361k1069 Liberal or strict construction
             Undefined terms                                        When interpreting a statute, liberal-construction
        Statutes                                                    objectives do not permit a construction of the act
             Construing together; harmony                           untethered from its statutory moorings.

        361 Statutes                                                Cases that cite this headnote
        361III Construction
        361III(D) Particular Elements of Language
        361k1123 Undefined terms                              [8]   Statutes
        361 Statutes                                                     Context
        361III Construction                                         361 Statutes
        361III(E) Statute as a Whole; Relation of Parts to          361III Construction
        Whole and to One Another                                    361III(E) Statute as a Whole; Relation of Parts to
        361k1155 Construing together; harmony                       Whole and to One Another
        A court will not give an undefined term a                   361k1153 Context
        meaning that is out of harmony or inconsistent              Meanings of statutory terms cannot be
        with other terms in the statute; therefore, even            determined in isolation but must be drawn from
        if an undefined term has multiple meanings, the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       2
Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

        the context in which they are used; the court                361III(E) Statute as a Whole; Relation of Parts to
        must therefore analyze the reasonableness of                 Whole and to One Another
        each definition in light of the statutory context.           361k1159 Associated terms and provisions;
                                                                     noscitur a sociis
        Cases that cite this headnote                                The canon of statutory construction known
                                                                     as “noscitur a sociis” —“it is known by its
                                                                     associates”—holds that the meaning of a word or
 [9]    Records
                                                                     phrase, especially one in a list, should be known
            Agencies or custodians affected
                                                                     by the words immediately surrounding it.
        326 Records
        326II Public Access                                          Cases that cite this headnote
        326II(B) General Statutory Disclosure
        Requirements
        326k51 Agencies or custodians affected                [12]   Statutes
        For a private entity to be “sustained” by                         Language
        public funds, which would render the entity a                361 Statutes
        “government body” subject to the Texas Public                361III Construction
        Information Act (TPIA) suggests the existence                361III(A) In General
        of a financially dependent relationship between              361k1078 Language
        the governmental body and a private entity or its            361k1079 In general
        subdivision redolent of that between a parent and            Even a liberal construction of a statute must
        child or principal and agent; however, financial             remain grounded in the statute's language.
        dependence need not be absolute. Tex. Gov't
                                                                     1 Cases that cite this headnote
        Code Ann. § 552.003(1)(A).

        Cases that cite this headnote                         [13]   Records
                                                                         Agencies or custodians affected
 [10]   Records                                                      326 Records
            Agencies or custodians affected                          326II Public Access
                                                                     326II(B) General Statutory Disclosure
        326 Records
                                                                     Requirements
        326II Public Access
                                                                     326k51 Agencies or custodians affected
        326II(B) General Statutory Disclosure
                                                                     Determining whether a private entity partially
        Requirements
        326k51 Agencies or custodians affected                       funded with public funds qualifies as a
        A private entity “supported” by public funds,                “governmental body” subject to the Texas Public
        which would qualify the entity as a “government              Information Act (TPIA) will likely require case-
        body” subject to the Texas Public Information                specific analysis and a close examination of the
        Act (TPIA), would not just receive government                facts. Tex. Gov't Code Ann. § 552.003(1)(A).
        funds; it would require them to operate in whole
                                                                     1 Cases that cite this headnote
        or in part. Tex. Gov't Code Ann. § 552.003(1)
        (A).
                                                              [14]   Statutes
        Cases that cite this headnote                                     Associated terms and provisions; noscitur a
                                                                     sociis
 [11]   Statutes                                                     361 Statutes
             Associated terms and provisions; noscitur a             361III Construction
        sociis                                                       361III(E) Statute as a Whole; Relation of Parts to
                                                                     Whole and to One Another
        361 Statutes
                                                                     361k1159 Associated terms and provisions;
        361III Construction
                                                                     noscitur a sociis




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

        The canon of statutory construction “noscitur a         body” subject to public disclosure of its private business
        sociis” that a word or phrase, especially one in a      affairs under the Texas Public Information Act. In seeking
        list, should be known by the words immediately          to promote the public's legitimate interest in transparent
        surrounding it, cannot be used to render express        government, the Act imposes considerable disclosure
        statutory language meaningless.                         obligations on “governmental bod[ies].” Importantly, the
                                                                statutory definition of “governmental body” extends only to
        Cases that cite this headnote                           “the part, section, or portion of an organization, corporation,
                                                                commission, committee, institution, or agency that spends
 [15]   Statutes                                                or that is supported in whole or in part by public funds.”
             Superfluousness                                    See TEX. GOV'T CODE § 552.003(1)(A)(xii) (emphasis
          361 Statutes
                                                                added). This operates to prevent nominally private entities
          361III Construction                                   whose work might otherwise qualify them as de facto
          361III(E) Statute as a Whole; Relation of Parts to    public agencies from circumventing the Act's disclosure
          Whole and to One Another                              requirements. This case requires us to decide whether the term
          361k1156 Superfluousness                              “supported” encompasses private entities contracting at arm's
        When interpreting a statute, the court will             length with the government to provide general and specific
        generally attempt to avoid treating statutory           services or whether the term properly includes only those
        language as surplusage.                                 entities that could not perform similar services without public
                                                                funds and, are thus, sustained—in whole or part—by such
        Cases that cite this headnote                           funds.

                                                                When a private entity enters into a contract and receives
                                                                government funds in exchange for its services, the entity's
 *53 On Petition for Review from the Court of Appeals           right to conduct its affairs confidentially may be in
for the Third District of Texas. Honorable Scott H. Jenkins,    tension with the public's right to know how government
Judge.                                                          funds are spent. Transparency, openness, and accountability
                                                                in the government are all of fundamental importance.
Attorneys and Law Firms                                         However, these important policy objectives cannot extinguish
                                                                the privacy rights properly belonging to private business
Bill Aleshire, Aleshire Law PC, Jennifer S. Riggs, Riggs
                                                                entities in Texas. By liberally authorizing public access to
Aleshire & Ray, Austin, TX, Lynne Liberato, Polly B. Fohn,
                                                                government records while simultaneously shielding private
Haynes and Boone LLP, Houston, TX, for Petitioner.
                                                                business from unwarranted interference, the Legislature
Charles Roy, Daniel T. Hodge, First Asst. Attorney General,     carefully balanced these *54 conflicting interests. Mindful
David A. Talbot Jr., Consumer Protection, David C. Mattax,      of the delicate equilibrium between these equally compelling
James Edward Davis, Kimberly L. Fuchs, Matthew H.               concerns, we conclude that the term “supported,” which helps
Frederick, Assistant Solicitor General, Warren Kenneth          define the breadth of the Act, unambiguously includes only
Paxton Jr., Office of the Attorney General, Rosalind L. Hunt,   those entities at least partially sustained by public funding.
Office of Attorney General, Administrative Law Divison,         Because the statutory language is unambiguous, we need not
Austin, TX, Eric Lyf Yollick, Yollick Law Firm, P.C., The       consider the accuracy or vitality of the test articulated in
Woodlands, TX, for Respondents.                                 Kneeland v. National Collegiate Athletic Ass'n, 850 F.2d 224
                                                                (5th Cir. 1988), which the Attorney General's Open Records
Opinion                                                         Division has traditionally applied to private entities in cases
                                                                involving open-record requests.
JUSTICE GUZMAN delivered the opinion of the Court,
in which CHIEF JUSTICE HECHT, JUSTICE GREEN,
                                                                Here, Greater Houston Partnership, a nonprofit corporation
JUSTICE LEHRMANN, JUSTICE DEVINE, and JUSTICE
                                                                providing economic-development services to the City and
BROWN joined.
                                                                other clients pursuant to quid pro quo contracts, contests
The question presented here is whether a private entity         whether it is a “governmental body” in whole or in part.
operating like a chamber of commerce is a “governmental         Applying Kneeland, the Attorney General and lower courts



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

held that it is. We hold, however, that Greater Houston             to imply that [GHP] is subject to the Texas Public Information
Partnership is not a “governmental body” under the Texas            Act.”
Public Information Act because it is not wholly or partially
sustained by public funds; we therefore reverse the court of        The instant suit arose from a May 2008 request Houston-area
appeals' judgment and render judgment for Greater Houston           resident Jim Jenkins submitted to GHP in which he sought
Partnership.                                                        “a copy of the check register for [GHP] for *55 all checks
                                                                    issued for the year 2007.” Jenkins grounded his request in the
                                                                    Texas Public Information Act (TPIA), claiming that “[p]ublic
                                                                    records show that [GHP] is an organization that spends or
          I. Factual and Procedural Background
                                                                    that is supported in whole or in part by public funds,” and
Greater Houston Partnership (GHP) is a private, nonprofit           GHP is, therefore, “subject to the Public Information Act in
corporation that promotes regional economic growth and an           the same manner as a governmental body.” See TEX. GOV'T
attractive business climate for a ten-county area centered          CODE § 552.003(1)(A)(xii) (defining “governmental body”
around Houston, Texas. GHP's stated purpose is to enhance           for purposes of the TPIA).
economic prosperity, facilitate business relocation and
expansion, encourage international outreach initiatives, and        GHP objected to Jenkin's request and did not disclose the
provide strategic planning to advocate for “the improvement         information. GHP acknowledged it received public funds
of commercial, industrial, agricultural, civic, and cultural        from the City but disagreed it qualified as a “governmental
affairs” in the Houston region. In furtherance of this objective,   body” under the TPIA because the public funds were
GHP provides consulting, event planning, and marketing              compensation for vendor services provided pursuant to
services (including advertising and market research) to its         an arm's-length contract with the City. The City's annual
roughly 2,100 member companies on a contractual basis.              payments under the contract amounted to less than 8% of
GHP also hosts numerous networking and professional                 GHP's total annual revenue; member contributions, on the
development events, including several weekly GHP Council            other hand, totaled more than 90% of its revenue. GHP further
meetings on topics relevant to the regional economy. GHP            noted that of the roughly 2,100 companies that comprise its
operates on an annual budget of approximately $11.7 million,        membership, only four could be described as governmental
and these funds emanate primarily from membership revenue.          bodies. Refusing to disclose the requested information, GHP
In short, GHP functions much like thousands of chambers             referred the matter to the Texas Attorney General as required
of commerce across the nation that promote municipal and            under the TPIA. See id. §§ 552.301(a), .307.
regional economies.
                                                                    In an informal letter ruling, the Attorney General's Open
Consistent with its business model, GHP contracted to               Records Division agreed with Jenkins, and concluded that
provide consulting, event planning, and marketing services          GHP was a “governmental body” subject to the TPIA's
to the City of Houston, pursuant to an “Agreement for               disclosure requirements specifically with respect to the 2007
Professional Services.” GHP and the City signed similar             contract with the City. 1 Tex. Att'y Gen. OR2008–16062;
agreements annually for several years, including 2007 and           see also TEX. GOV'T CODE § 552.306. In reaching this
2008, the time periods at issue here. The contracts included        conclusion, the Attorney General determined that GHP's
a “Scope of Services” exhibit that delineated, under general        operations were “supported” by the City because: (1) GHP
headers, the specific services that GHP would provide to            provided vague and indefinite services to the City aimed at
the City. Under these contracts, GHP received quarterly             advancing the City's overall economic development; (2) GHP
payments in arrears contingent upon the City's approval of          and the City shared a common purpose and objective centered
performance reports detailing the particular services GHP           around the City's economy; and (3) GHP provided services
provided in that quarter. If GHP failed to deliver the              traditionally supplied by the government. Tex. Att'y Gen.
contracted-for services to the City's satisfaction, the contracts   OR2008–16062.
authorized the City to pay GHP for the portion of services
satisfactorily rendered. Notably, however, the two contracts        1      GHP did not claim any exemptions from mandatory
differed in one significant respect: the 2008 contract expressly           disclosure and only challenged that it is a governmental
provided that “[n]othing in this Agreement shall be construed              body subject to the TPIA in the first instance.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   5
Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

In response to the Attorney General's informal ruling, GHP          context unambiguously dictated only the narrow construction
filed a declaratory-judgment action against the Attorney            of “supported” as applied to a private entity. Id. at 788 (Jones,
General seeking a declaration that: (1) the Attorney General        C.J., dissenting).
lacked jurisdiction over the dispute and (2) even if jurisdiction
was proper, GHP was not a “governmental body” under the             3       Derived from a handful of nascent open-records rulings,
TPIA. See TEX. GOV'T CODE §§ 552.3215(e), .321, .325(a).                    the Kneeland test originated in a 1986 case considering
Shortly after GHP filed suit, Jenkins filed an additional                   whether the National Collegiate Athletic Association
request seeking a copy of GHP's 2008 “disbursement registers                and Southwest Athletic Conference were “supported in
and/or check registers,” including the number, date, payee                  whole or in part by public funds” under the TPIA's
name, amount, and purpose. Noting that GHP had already                      predecessor statute. See Kneeland v. Nat'l Collegiate
filed suit regarding the 2007 check-register request, the                   Athletic Ass'n, 650 F.Supp. 1047 (W.D.Tex.1986), rev'd,
Attorney General closed the second request without a finding                850 F.2d 224 (5th Cir. 1988). “Finding no dispositive
and directed the trial court to resolve the dispute. Jenkins                Texas jurisprudence on this issue,” the Fifth Circuit
                                                                            “closely examine[d] the opinions of the Texas Attorney
intervened in the lawsuit shortly thereafter. See id. § 552.325
                                                                            General” and discovered “helpful signs, albeit mixed
(authorizing a requestor to intervene in the suit).
                                                                            signals, in the [Attorney General] opinions.” Id. at
                                                                            228. Despite a rather tepid endorsement, and without
After a bench trial, the trial court found GHP was a                        considering the statutory language, the court identified
“governmental body” supported by public funds and ordered                   and applied “three distinct patterns of analysis in
disclosure of the 2007 and 2008 check registers. 2 The trial                opinions interpreting [the funding-source element] of the
court determined that:                                                      Act” to private entities. Id. Those “patterns of analysis”
                                                                            provided the foundation for what became the three-
    *56 • GHP received public funds to provide economic                     pronged Kneeland test.
     development and promotion services for or on behalf of         On appeal to this Court, GHP advances three principal
     the City;                                                      reasons why it is not a “governmental body” under the
                                                                    TPIA. First, GHP contends the phrase “supported ... by
    • GHP and the City shared the common purpose of
                                                                    public funds” unambiguously excludes the City's payments
      economic development and promotion; and
                                                                    to GHP. Second, even if the language is ambiguous, the
    • An agency-type relationship was created between GHP           Court should reject the Kneeland test because it is unclear
      and the City of Houston.                                      and not grounded in the statutory language. Third, GHP
                                                                    argues it is not “supported ... by public funds” even under
2                                                                   the Kneeland test. The Attorney General disputes all three
        The sole witness was Tracye McDaniel, GHP's executive
        vice president and chief operating officer. Documentary
                                                                    points. First, it contends that GHP plainly qualifies as a
        evidence included: six other contracts between GHP          “governmental body” under the TPIA; limiting the statute's
        and other governmental bodies executed after 2008; the      reach to entities that exist solely to carry out government
        contracts between the City and GHP for fiscal years         functions would frustrate its purpose of openness, and GHP is
        2007, 2008, and 2009; GHP's Articles of Incorporation;      “supported” by public funds. Second, the Kneeland test is not
        Jenkins's requests for the 2007 and 2008 check registers;   only the relevant framework in which to evaluate the TPIA's
        all four quarterly performance reports GHP submitted        application to otherwise private entities, the Legislature has
        to the City in 2007; and performance reports GHP
                                                                    effectively endorsed the Kneeland test. 4 Third, the court
        submitted to other governmental bodies in 2007 and
                                                                    of appeals properly applied the three Kneeland elements to
        2010.
                                                                    GHP, a “governmental body” subject to regulation under the
The court of appeals agreed with the trial court and affirmed       TPIA.
its judgment, albeit over a strongly worded dissent. 407
S.W.3d at 786, 787. Finding the phrase “supported in whole or       4       The Legislature has amended the TPIA several times
in part by public funds” ambiguous, the lower court relied on
                                                                            without materially altering the funding-source element
an extra-textual analytical construct known as the Kneeland
                                                                            of the “governmental body” definition. See Act of May
test to conclude GHP qualified as a governmental body                       29, 1995, 74th Leg., R.S., ch. 1035, § 2, 1995 Tex. Gen.
under the TPIA. 3 Id. at 782–83. The dissent criticized the                 Laws 5127, 5128; see also Act of May 20, 1991, 72nd
court's reliance on the Kneeland test, finding the statutory                Leg., R.S., ch. 306, § 5, 1991 Tex. Gen. Laws 1340,



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      6
Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

       1341–42; Act of May 17, 2001, 77th Leg., R.S., ch. 633,      supported in whole or in part by public funds” to the TPIA.
       § 2, 2001 Tex. Gen. Laws 1194, 1194–95; Act of April         Id. § 552.003(1)(A)(xii). The crux of our inquiry in this case
       23, 1999, 76th Leg., R.S., ch. 62, § 18.24, 1999 Tex. Gen.   is the meaning of “supported in whole or in part by public
       Laws 127, 403; Act of May 24, 2001, 77th Leg., R.S.,         funds.” The proper scope of this phrase is significant because
       ch. 1004, § 2, 2001 Tex. Gen. Laws 2186, 2187; Act of
                                                                    the consequences of being characterized as a governmental
       May 20, 2003, 78th Leg., R.S., ch. 1276, § 9.014, 2003
                                                                    body are considerable. The most obvious is that under section
       Tex. Gen. Laws 4158, 4218.
                                                                    552.221 of the Texas Government Code, a “governmental
 *57 We granted GHP's petition for review to determine the          body” must promptly produce “public information” on
proper scope of the funding source element of the TPIA's            request unless an exemption from disclosure applies and
“governmental body” definition.
                                                                    is timely asserted. 7 See id. §§ 552.101–.123, .221; see
                                                                    also Tex. Comptroller of Pub. Accounts v. Att'y Gen. of
                                                                    Tex., 354 S.W.3d 336, 341–48 (Tex.2010) (construing an
                        II. Discussion                              exemption under the TPIA). The term “public information”
                                                                    broadly includes “information that is collected, assembled,
                                                                    or maintained under a law or ordinance or in connection
                    A. Background Law
                                                                    with the transaction of official business” either: (1) “by a
The Legislature enacted the Texas Open Records Act in 1973          governmental body” or (2) “for a governmental body and the
to increase government transparency in the wake of public           governmental body owns the information or has a right of
scandals, including a massive stock-fraud imbroglio known           access to it.” TEX. GOV'T CODE § 552.002(a).

as the Sharpstown scandal. 5 In 1993, the Open Records
                                                                    7      To claim an exemption, a governmental body must,
Act was recodified without substantive revision as the Texas
                                                                           within ten business days after receiving a request,
Public Information Act. 6 Currently codified in Chapter 552
                                                                           submit a written statement to the Attorney General
of the Texas Government Code, the TPIA's stated policy                     explaining why the information should be withheld and
objectives are to provide accountability and transparency                  request an Attorney General opinion. TEX. GOV'T
in government by establishing mechanisms to foster public                  CODE § 552.301(a), (b). If the Attorney General rules
access to government records. See TEX. GOV'T CODE §§                       that the Act does not exempt the information from
552.001–.353. Importantly, an entity's disclosure obligations              required disclosure, the governmental body must make
under the TPIA hinge on whether it is in fact a “governmental              it available to the requesting party or seek a judicial
body.”                                                                     determination that the information does not have to be
                                                                           disclosed. Id. §§ 552.3215(e), .324, .325(a); see also
5                                                                          City of Garland v. Dall. Morning News, 22 S.W.3d 351,
       See Act of May 19, 1973, 63rd Leg., R.S., ch.
                                                                           356 (Tex.2000). If the governmental body refuses to
       424, § 1–16, 1973 Tex. Gen. Laws 1112, 1112–18
                                                                           disclose the requested information, the Attorney General
       (codified at TEX. REV. CIV. STAT. art. 6252–17a);
                                                                           may seek to compel disclosure through a mandamus
       see generally Mutscher v. State, 514 S.W.2d 905,
                                                                           proceeding. TEX. GOV'T CODE § 552.321.
       910–11 (Tex.Crim.App.1974) (summarizing events of
       Sharpstown scandal).
6      Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993                    *58 B. Statutory Construction
       Tex. Gen. Laws 583, 986 (codified at TEX. G OV'T
                                                                     [1] [2] [3] [4] [5] [6] GHP argues that as a private
       CODE §§ 552.001–.353).
                                                                    entity, it is not subject to the TPIA's disclosure requirements
The TPIA defines a “governmental body” as one of twelve             because it does not qualify as a “governmental body” under
different types of entities. See id. § 552.003(1)(A). Most          the statute's plain language. GHP therefore contends that it
of the entities listed in section 552.003(1)(A) are identified      is entitled to seek the privacy protections typically afforded
quite precisely; for example, a “school district board of           to nongovernmental entities. Determining whether GHP is a
trustees” is statutorily defined as a “governmental body.” Id.      “governmental body” whose records are subject to disclosure
§ 552.003(1)(A)(v). Others are more amorphous, including            under the TPIA presents a matter of statutory construction that
the section at issue here, which subjects “the part, section,       we review de novo. City of Garland v. Dall. Morning News,
or portion of an organization, corporation, commission,             22 S.W.3d 351, 357 (Tex.2000). When interpreting a statute,
committee, institution, or agency that spends or that is


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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

our primary objective is to ascertain and give effect to the     and only one of those definitions is reasonable when the
Legislature's intent without unduly restricting or expanding     statute is considered as a whole. Reading the definition of
the Act's scope. City of Lorena v. BMTP Holdings, L.P.,          “governmental body” in its contextual environment—as we
409 S.W.3d 634, 641 (Tex.2013). We seek that intent first        are bound to do—reveals that the TPIA applies only to entities
and foremost in the plain meaning of the text. Id.; see also     acting as the functional equivalent *59 of a governmental
Tex. Lottery Comm'n v. First State Bank of DeQueen, 325          body that are “sustained” at least in part, by public funds.
S.W.3d 628, 635 (Tex.2010). “Undefined terms in a statute        In reaching this conclusion, we remain ever mindful of the
are typically given their ordinary meaning, but if a different   statute's liberal-construction clause. But liberal-construction
or more precise definition is apparent from the term's use       objectives do not permit a construction of the Act untethered
in the context of the statute, we apply that meaning.” TGS–      from its statutory moorings.
NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439
(Tex.2011). “However, we will not give an undefined term         Familiar interpretive guides and established canons of
a meaning that is out of harmony or inconsistent with other      construction inform our reading of section 552.003(1)(A)
terms in the statute.” State v. $1,760.00 in U.S. Currency,      (xii). In determining the meaning of “supported ... by
406 S.W.3d 177, 180 (Tex.2013). Therefore, even if an            public funds,” we begin, as we must, with the statute's
undefined term has multiple meanings, we recognize and           plain language. Tex. Lottery Comm'n, 325 S.W.3d at 635.
apply only the meanings that are consistent with the statutory   Common English words frequently have a number of
scheme as a whole. Id. at 180–81. We only resort to rules        dictionary definitions, some quite abstruse and esoteric,
of construction or extrinsic aids when a statute's words are     others more comprehensible and commonplace. See, e.g.,
ambiguous. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d      $1,760.00 in U.S. Currency, 406 S.W.3d at 180–81 (noting
433, 437 (Tex.2009). Finally, in construing the TPIA, we are     that “novelty” has multiple dictionary definitions). Not
mindful of the legislative mandate that the TPIA be “liberally   surprisingly, “supported,” the key term here, is subject to
construed in favor of granting a request for information.”       at least six disparate definitions in its verb form alone,
TEX. GOV'T CODE § 552.001(b).                                    with many of those including more nuanced sub-definitions.
                                                                 See WEBSTER'S THIRD NEW INT'L DICTIONARY 2297
As an initial matter, we observe the parties' agreement that     (2002). By reading the term in context, however, we can
GHP is a “governmental body” only if it, or a “part, section,    narrow the universe of possible definitions to the most
or portion” of it “is supported in whole or in part by public    apposite. See TGS–NOPEC Geophysical Co., 340 S.W.3d at
funds.” It is likewise undisputed that GHP receives “public      439.
funds.” 8 The parties disagree, however, on the meaning and
application of the statutory phrase, “supported in whole or       [8] As always, we are cognizant of the “fundamental
in part by.” GHP argues that the TPIA cannot reasonably be       principle of statutory construction and indeed of language
interpreted to apply to privately-controlled corporations that   itself that words' meanings cannot be determined in isolation
perform services under quid pro quo government contracts.        but must be drawn from the context in which they are used.”
According to GHP, the Legislature unambiguously intended         Id. at 441. We must therefore analyze the reasonableness of
“supported in whole or in part by public funds” to identify      each definition in light of the statutory context. See Jaster v.
entities that were created or exist to carry out government      Comet II Const., Inc., 438 S.W.3d 556, 562 (Tex.2014); see
functions and whose existence are maintained in whole or         also R.R. Comm'n v. Tex. Citizens for a Safe Future & Clean
in part with public funds. Conversely, the Attorney General      Water, 336 S.W.3d 619, 628 (Tex.2011) ( “We generally
declares the statutory language ambiguous because it could       avoid construing individual provisions of a statute in isolation
reasonably be read to apply to any contract between the          from the statute as a whole.”). The statute's first contextual
government and a private entity. We agree with GHP.              clue emerges from the words immediately surrounding
                                                                 “supported.” To avoid disharmony with the rest of the statute,
8                                                                “supported” must bear reference to “public funds,” so it
       “Public funds” refers to the “funds of the state or of
                                                                 is clear that non-monetary definitions of “supported” make
       a governmental subdivision of the state.” TEX. GOV'T
                                                                 little sense in context. See WEBSTER'S THIRD NEW INT'L
       CODE § 552.003(5).
                                                                 DICTIONARY 921 (2002) (defining “funds” as “available
 [7] “Supported” is an undefined term with multiple and          pecuniary resources”). Applying this limitation, we winnow
varied dictionary definitions. However, only two of the
definitions are even remotely possible as applied to the TPIA


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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

the field down to two potential meanings for “supported,”          with hundreds of clients would qualify as a “governmental
both of which are faithful to the statutory context:               body” merely by virtue of getting paid for selling office
                                                                   supplies to a single state office. See 407 S.W.3d at 781. Every
  (1) to pay the costs of: maintain; to supply with the means      company must expend funds to stay in business; it would be
  of maintenance (as lodging, food or clothing) or to earn or      impossible to conclude that any business compensated for
  furnish funds for maintaining; or                                providing goods or services to a governmental entity pursuant
                                                                   to a quid pro quo contract was not using public funds to
  (2) to provide a basis for the existence or subsistence
                                                                   pay for necessities. Thus, any entity doing business with the
  of: serve as the source of material or immaterial supply,
                                                                   government would be a “governmental body.”
  nourishment, provender, fuel, raw material, or sustenance
  of.
                                                                   “Quid pro quo” means “[a]n action or thing that is exchanged
See WEBSTER'S THIRD NEW INT'L DICTIONARY 2297                      for another action or thing of more or less equal value.” See
(2002); accord BLACK'S LAW DICTIONARY 1668 (10th                   BLACK'S LAW DICTIONARY 1443 (10th ed. 2009). As the
ed. 2009) (defining the term “support” to mean “[s]ustenance       dissent agrees, the Legislature did not intend for the statute
or maintenance”). In statutory context, “supported” must thus      to reach entities involved in quid pro quo transactions with
mean sustenance, maintenance, or both.                             the government, and it is undisputed that a fair reading of the
                                                                   statute cannot countenance such a result. 407 S.W.3d at 789.
Another contextual clue derives from the Act's purpose. The        We reject any reading of “supported” that would injudiciously
statutory context indicates that all section 552.001(a) entities   apply public transparency laws to private businesses merely
are either the government or its functional equivalent. First,     because they receive public funds under a contract with the
the statute provides the public with “complete information         government. Accordingly, the “maintenance” definition of
about the affairs of government and the official acts of public    “supported” is not textually viable.
officials and employees.” TEX. GOV'T CODE § 552.001(a).
The stated purpose of permitting access to this information         [9] [10] In contrast, defining “supported” as “sustenance”
is to allow the public to “retain control over the instruments     ensures that only an entity, or its “part, section or portion,”
they have created.” Id. A reasonable definition of “supported”     whose existence is predicated on the continued receipt of
must be compatible with this stated purpose. The statute           government funds would qualify as a “governmental body.”
also specially *60 defines the term “governmental body.”           Among the meanings of “sustain” are “to cause to continue;
In defining that term, the Legislature carefully omitted any       to keep up; to carry or withstand; to nourish; to prevent
broad reference to private entities, instead including private     from sinking or giving way.” See WEBSTER'S THIRD
entities insofar as they are “supported ... by public funds.”      NEW INT'L DICTIONARY 2304 (2002); see also BLACK'S
Compare id. with FLA. STAT. § 119.011(2). In light of this         LAW DICTIONARY 1676 (10th ed. 2009) (defining
omission, which we presume the Legislature purposefully            “sustain” to mean “to nourish and encourage”). Applying
selected, the scope of the term “governmental body,” as            this construction, the universe of private entities constituting
applied to private entities, must be filtered through the Act's    governmental bodies is obviously more circumscribed
purpose and function of allowing access to instrumentalities       because only a small segment of private entities could fairly
of government. Thus, the Act only applies to private entities      be considered to be sustained by the government. To be
acting as the functional equivalent of the government. See         “sustained” by public funds suggests the existence of a
TGS–NOPEC Geophysical Co., 340 S.W.3d at 439.                      financially dependent relationship between the governmental
                                                                   body and a private entity or its subdivision redolent of that
Defining “supported” to mean “maintenance” is untenable            between a parent and child or principal and agent. Financial
because doing so risks sweeping any private entity that            dependency need not be absolute, however. Rather, the
received any public funds within the definition of a               government could be one of several contributing sources. But
“governmental body.” See 407 S.W.3d at 781 (citing Tex.            sustenance implies that if the government ceased to provide
Ass'n of Appraisal Dists., Inc. v. Hart, 382 S.W.3d 587,           financial support, the entity would be unable to meet its
591–92 (Tex.App.–Austin 2012, no pet.)). To resurrect the          financial obligations. Unquestionably, a *61 private entity
example provided by the court of appeals, if we equate             would qualify under a financially dependent construction of
“supported” with supplying an entity with a means by which         “supported” if it could not pursue its mission and objectives
the entity can pay for necessities, then even a paper vendor       without the receipt of public funds, even if that funding



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

only partially financed the entity's endeavors. In short, an
entity “supported” by public funds would not just receive          First, the statute expressly identifies as a “governmental
government funds; it would require them to operate in whole        body” the governing board of a nonprofit water supply
or in part. 9 If we construe “supported ... by public funds”       or wastewater service corporation that is organized under
in this manner, we must conclude GHP is not “supported”            Chapter 67 of the Texas Water Code and exempt from
by public funds because it receives only a small portion of        ad valorem taxation under the Texas Tax Code. See TEX.
its revenue from government contracts. And even if these           GOV'T CODE § 552.003(1)(A)(ix). A nonprofit corporation
government contracts were eliminated, it could continue to         of this type is authorized to engage in several traditional
operate given the substantial revenue derived from other           governmental functions, such as the right to build and
non-governmental sources. Moreover, GHP could and would            operate water- and waste-treatment facilities and sell water
continue to promote the greater Houston economy to advance         to political subdivisions, private entities, or individuals. See
its own interests and those of its more than 2,000 non-            TEX. WATER CODE § 67.002. Additionally, depending
government members. GHP, in sum, does not require public           on the size of the county it serves, a nonprofit water
funds and thus, is not sustained by public funds.                  or waste-water service provider may even establish and
                                                                   enforce “customer water conservation practices” through the
9                                                                  assessment *62 of “reasonable penalties as provided in the
       It is possible, of course, that a portion of a private
                                                                   corporation's tariff.” See id. § 67.011(a)(5), (b). By virtue
       entity could be sustained by public funds even where the
                                                                   of their special powers and privileges, these nonprofit utility
       private entity, as a whole, is not. In such instances, if
       the department or division is sustained by public funds,    operators essentially function as quasi-public corporations
       the division may be subject to the TPIA's disclosure        servicing the public. See Garwood Irr. Co. v. Williams, 243
       obligations. Here, GHP did not segregate funds, and         S.W.2d 453, 456 (Tex.Civ.App.–Galveston 1951, writ ref'd
       it argued that such segregation would be logistically       n.r.e.).
       impossible.
 [11] Because only one definition fits the statutory context,      The second potentially private “governmental body”
we conclude that “supported ... by public funds” must              identified in the statute is a nonprofit corporation eligible
be appropriately defined to only include those entities            to receive federal funding, in the form of block grants,
“sustained” by public funds—thereby ensuring that the statute      for anti-poverty programs at the state level. TEX. GOV'T
encompasses only those private entities dependent on the           CODE § 552.003(1)(A)(xi). Under this federal initiative, a
public fisc to operate as a going concern. Although not            nonprofit may receive funds if it demonstrates “expertise
dispositive, our conclusion is reinforced by the fact that this    in providing training to individuals and organizations on
construction of the term “supported” is consistent with the        methods of effectively addressing the needs of low-income
scope and nature of the eleven other types of entities more        families and communities” through a detailed application
clearly described as a “governmental body” in the same             process. 10 42 U.S.C. § 9913(c)(2) (2012); see also
provision. See TEX. GOV'T CODE § 552.003(1)(A). The                OFFICE OF CMTY. SERVS., U.S. DEP'T OF HEALTH
canon of statutory construction known as noscitur a sociis         & HUMAN SERVS., COMMUNITY SERVICES BLOCK
—“it is known by its associates”—holds that the meaning            GRANT STATE AND ELIGIBLE ENTITY TECHNICAL
of a word or phrase, especially one in a list, should be           ASSISTANT SERVICES 16–17(2015) (listing eligibility
known by the words immediately surrounding it. See TGS–            requirements). 11 A section 552.003(i)(A)(xi) “governmental
NOPEC Geophysical Co., 340 S.W.3d at 441. We rely on               body” must be “authorized by this state to serve a geographic
this principle to avoid ascribing to one word a meaning so         area of the state.” See TEX. GOV'T CODE § 552.003(1)(A)
broad that it is incommensurate with the statutory context.        (xi). This requirement presupposes that the nonprofit has a
Accordingly, in evaluating the breadth of “supported in whole      close working relationship with the state government. See
or in part by public funds,” we may consider the scope of          10 TEX. ADMIN. CODE § 5.211 (requiring an authorized
the enumerated categories preceding it. See Fiess v. State         nonprofit to submit monthly performance reports to the state
Farm Lloyds, 202 S.W.3d 744, 750–51 (Tex.2006). Of the             agency monitoring the program).
eleven other examples of a “governmental body” listed in the
statutory definition of the term, two stand out as arguably the    10     The federal program is codified at 42 U.S.C. §§
most analogous to a private nonprofit like GHP. Thus, we
                                                                          9901-9926 (2012) and is administered by the U.S.
briefly consider each in comparison.



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

       Department of Health and Human Services Office of                         remaining informed so that they may retain control
       Community Service. See 42 U.S.C. § 9912 (2012).                           over the instruments they have created.”
                                                                               Jackson v. State Office of Admin. Hearings, 351
11     Available at http://www.acf.hhs.gov/grants/open/foa/                    S.W.3d 290, 293 (Tex.2011) (citations omitted).
       files/HHS-2015-ACF-OCS-ET-1007_1.pdf.
                                                                      [13]     *63 In sum, we define “supported in whole or in
The foregoing examples describe ostensibly private entities          part by public funds” to include only those private entities
deputized by the government to provide services traditionally        or their sub-parts sustained, at least in part, by public funds,
considered governmental prerogatives or responsibilities.            meaning they could not perform the same or similar services
Thus, although nominally private, each is in fact acting             without the public funds. If GHP (as a private entity that
as a quasi-public entity performing a core governmental              receives government funds even while not being supported
function. There is a significant difference between an entity        by them) presents the hard case, entities on the ends of the
of this nature and one like GHP, and our construction of             spectrum—those that receive no government money, and
“supported in whole or in part by public funds” reflects as          those that receive only government money—will obviously
much by capturing only those entities acting as the functional       present much more straightforward questions. Determining
equivalent of the government. See Fiess, 202 S.W.3d at 751.          whether a partially funded entity qualifies as a “governmental
                                                                     body” will likely require case-specific analysis and a close
 [12] Our construction of the term “supported” remains               examination of the facts. Nonetheless, we recognize as a
faithful to the TPIA's liberal-construction clause. See TEX.         general proposition that an entity, like GHP, that does not
GOV'T CODE § 552.001(b) (“This chapter shall be liberally            depend on any particular revenue source to survive—public
construed in favor of granting a request for information.”).         or private—is not sustained even in part by government funds.
We have consistently recognized this clause expresses an
important statement of legislative purpose, and we continue
to adhere to it today. See, e.g., City of Garland, 22 S.W.3d
at 364 (“Unlike the [Freedom of Information Act], our                                   C. Other Jurisdictions
Act contains a strong statement of public policy favoring
                                                                     While our construction of the TPIA is supported by a
public access to governmental information and a statutory
                                                                     plain-meaning reading of the statute, an examination of
mandate to construe the Act to implement that policy and to
                                                                     similar open-records statutes from other jurisdictions is also
construe it in favor of granting a request for information.”).
                                                                     instructive. In states where open-records acts apply to entities
Still, even a liberal construction must remain grounded
                                                                     “supported in whole or in part by public funds,” our sister
in the statute's language and cannot overwhelm contextual
                                                                     courts have unanimously construed the phrase to exclude,
indicators limiting public intrusion into the private affairs of
                                                                     as a general matter, private entities receiving public funds
nongovernmental entities. 12                                         pursuant to quid pro quo agreements without regard to
                                                                     whether such an agreement is the entity's only funding
12     There is little to support the view that open-records laws    source. See, e.g., Indianapolis Convention & Visitors Ass'n,
       were envisioned as tools to pry open the sensitive records    Inc. v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 214
       of private entities or to function as a private discovery     (Ind.1991) (“In situations involving a quid pro quo, that is,
       tool. See N.L.R.B. v. Robbins Tire & Rubber Co., 437          measured goods or services given in exchange for payment
       U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978)           based on identifiable quantities of goods or services, a private
       (describing the Freedom of Information Act). Instead, we
                                                                     entity would not be transformed into a public entity because
       have recognized:
                                                                     it would not be maintained and supported by public funds.”);
             The Texas Legislature promulgated the TPIA
                                                                     Weston v. Carolina Research & Dev. Found., 303 S.C.
             with the express purpose of providing the
             public “complete information about the affairs of
                                                                     398, 401 S.E.2d 161, 165 (1991) (“[T]his decision does not
             government and the official acts of public officials    mean that the [open-records act] would apply to business
             and employees.” The Act is aimed at preserving          enterprises that receive payment from public bodies in return
             a fundamental tenet of representative democracy:        for supplying specific goods or services on an arms length
             “that the government is the servant and not the         basis.”); Adams Cnty. Record v. Greater N.D. Ass'n, 529
             master of the people.” At its core, the TPIA reflects   N.W.2d 830, 836 (N.D.1995) (“When there is a bargained-
             the public policy that the people of Texas “insist on   for exchange of value, a quid pro quo, the entity is not
                                                                     supported by public funds.”). Additionally, even in those



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

states whose open-records acts fail to define “governmental       controlled corporation” and subject to FOIA disclosure
body” or an equivalent term, our sister courts still narrowly     requirements only if the private entity is also subjected to
construe the statute to include only private entities that have   “extensive, detailed, and virtually day-to-day supervision” by
a relationship so intertwined with the government that they       the government. Forsham v. Harris, 445 U.S. 169, 180, 100
are the “functional equivalent of a governmental agency.”         S.Ct. 977, 63 L.Ed.2d 293 (1980). The federal supervision
Memphis Publ'g Co. v. Cherokee Children & Family Servs.,          must be “substantial ... and not just the exercise of regulatory
Inc., 87 S.W.3d 67, 78–79 (Tenn.2002); see also State ex rel.     authority necessary to assure compliance with the goals of
Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 854         the federal grant.” Id. at 180 n.11, 100 S.Ct. 977. Thus,
N.E.2d 193, 198–99 (2006).                                        narrowly defining “supported in whole or in part by public
                                                                  funds” under Texas law is consistent with the approach of
Recognizing the right of private businesses to conduct their      other jurisdictions featuring similar acts and the United States
affairs autonomously, at least one court has adopted a *64        Supreme Court's interpretation of the federal act on which the
presumption that a private entity is not subject to an open-      TPIA is based.
records request absent clear and convincing evidence that the
private entity is the functional equivalent of a governmental
body. See, e.g., State ex rel Oriana House, Inc., 854 N.E.2d
                                                                                   D. Response to the Dissent
at 200. In Florida, the only state whose statute expressly
includes private entities, the Florida Supreme Court narrowly      [14] We briefly address some of the contentions in the
interpreted its open-records act to exclude private entities      dissenting opinion. Regarding statutory construction, there is
merely providing professional services to a governmental          little disagreement about the guiding principles and relevant
body. See News & Sun–Sentinel Co. v. Schwab, Twitty &             canons involved here, and we agree, of course, that the canon
Hanser Architectural Group, Inc., 596 So.2d 1029, 1031            of noscitur a sociis “cannot be used to render express statutory
(Fla.1992) (construing FLA. STAT. § 119.011(2)). In fact, of      language meaningless.” Op. at 83 (Boyd, J., dissenting).
those states with similar statutes, we have not encountered       We disagree as to the proper implementation of the canon,
one that has construed an open-records act to include a private   however. The dissent asserts that the first eleven definitions
entity providing specific and measurable vendor services to a     of “governmental body” in the TPIA should be cabined off
governmental body, even if that entity receives public funds.     from the twelfth definition of that term because the twelfth
We find it difficult to ignore this interpretative uniformity,    definition “uses specific language, inherently different than
especially considering the gravitas of the interests at stake.    the language of the other definitions.” Id. at 82. The dissent,
                                                                  thus, argues that the nature of the first eleven definitions
Our plain-meaning construction also comports with federal         cannot inform the twelfth. We disagree. All twelve are
precedent interpreting the federal analogue—the Freedom           definitions of governmental bodies, and given that the twelfth
of Information Act (FOIA). See Tex. Comptroller of Pub.           definition is the most open-ended, blinders would be required
Accounts, 354 S.W.3d at 342 (noting that because the              to construe it in isolation *65 from its statutory predecessors.
Legislature modeled the TPIA on the FOIA, federal precedent       Separating the definitions in this way would not only be
is persuasive in construing the Act). Under the FOIA,             artificial, it would also deprive us of a key source of insight
“agency,” the federal equivalent of “governmental body,” is       into the parameters of the more expansive twelfth definition.
defined to include:
                                                                  More significant, however, is the dissent's suggestion that
            any executive department, military
                                                                  the statute is ambiguous. The dissent, building on this
            department, Government corporation,
                                                                  imprudent reading, would look to Attorney General decisions
            Government controlled corporation, or
                                                                  and the Kneeland test for “further guidance.” Id. at 85.
            other establishment in the executive
                                                                  In canvassing the landscape of informal Attorney General
            branch of the Government (including
                                                                  rulings and divining instruction therefrom, the dissent
            the Executive Office of the President),
                                                                  resurrects Kneeland 's questionable methodology, which did
            or any independent regulatory agency.
                                                                  the same. And as that court itself noted, even if “[o]ne
5 U.S.C. § 552(f)(1) (2012). In interpreting this broad           may have no quarrel with the formulae,” “the direction
language, the United States Supreme Court held that a private     given is a mite uncertain.” Kneeland, 850 F.2d at 228. The
entity receiving federal funding is considered a “government      dissent finds Kneeland “persuasive” but we do not reach



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

that analysis because of our determination that the statutory          visit target companies and pitch them on the City's business
language unambiguously excludes GHP from qualifying as                 advantages. These services are specific and measurable and
a “governmental body.” Nonetheless, we think it worth                  are the sort of quid pro quo exchanges typical of a vendor
brief pause to note Kneeland 's questionable foundation,               services contract in that industry.
as it—along with the raft of informal Attorney General
rulings that bookend the decision—constitute the “forty                 *66 Thus, we do not believe that the monetary payments
years of legal interpretations” that we supposedly ignore              due to GHP under the 2007 and 2008 agreements are
in today's opinion. 13 Op. at 68 (Boyd, J., dissenting).               “general or unrestricted payment[s] provided to subsidize
But many of these rulings were informal and, as such                   or underwrite the entity's activities” rather than “specific
lack any precedential value. Put simply, the weight of this            measurable services.” Id. at 86. Even the dissent admits that
legal authority is considerably less august than the dissent's         some—but not all—of GHP's activities qualify as “specific
formulation implies.                                                   measurable services,” so the disagreement here is more a
                                                                       matter of degree than anything else.
13     The Kneeland test gained prominence by happenstance
                                                                       The dissent's revised test would also require that “the funds
       rather than design. It derived from a single federal district
                                                                       be intended to promote a purpose, interest, or mission that
       court opinion based on five conclusory Attorney General
       opinions written without any attempt to construe the            the governmental and private entities share and would both
       statutory language. After Kneeland issued, the Attorney         pursue even in the absence of their contractual relationship.”
       General adopted the test without further analysis.              Id. at 88. The dissent posits that a law firm may share a broad
       Thereafter, the lower courts used the Kneeland test             goal with a client, but the firm's interest remains “transaction
       out of deference to the Attorney General, also without          specific” in a way that GHP's engagement is not. Id. at 89.
       scrutinizing the test in light of the statutory text and        At the risk of quibbling, we dispute that this metaphorical
       legislative intent embodied therein. We decline to defer        dividing line is nearly that clear or marked. Many law firms
       to a test created without consideration of the statutory        are hired not merely for a specific litigation matter but
       language.                                                       rather to provide more enduring and wide-ranging counsel.
While the dissent purports to rehabilitate Kneeland, its               And more importantly, while the dissent takes for granted
revised test is at best a partial improvement. The revised             that GHP and the City's interests are perfectly aligned (and
test makes it virtually impossible for an entity that provides         presumably always will be), that assumption is debatable.
intangible deliverables, such as consulting, advertising, or           For instance, although the vast majority of cities presumably
legal services, to satisfy the “specific and measurable                welcome financial investment, growth can prove politically
services” prong of the test. The dissent portrays GHP as               divisive—just witness the debates over gentrification that
sharing only broad, amorphous goals with the City. Yet,                grip many major cities experiencing explosive economic
the “broad” contract language referenced by the dissent                expansion. Regardless, the point is that GHP is hardly the
actually refers to GHP's more general overarching objectives           auxiliary and mirror of the City that the dissent portrays it to
(essentially, these statements of objectives function as               be, and the proposed revision of the Kneeland test will not
titles under which specific obligations of the contract are            significantly clarify this confused area of the law.
delineated). Each broad objective is followed by a list
of specific services GHP promised to provide to achieve                 [15] The dissent also contends that “the Court writes the
those objectives. For example, GHP was hired “to identify              words ‘in part’ completely out of the statutory definition.”
new business opportunities, secure economic incentives and             Id. at 79. Nothing so drastic is occurring here. The statute's
increase outreach and recruitment activities to the region's           “in part” language may envision a multi-division entity that
targeted key industries to strengthen the City of Houston              does business with the government, but not uniformly and
as a competitive place to do business.” In furtherance of              not across all units. For instance, one can conceptualize
that objective, GHP is contractually obligated to develop              a subdivision of a large corporation wholly funded by
business relationships with the top twenty-five companies not          government contracts; nevertheless, because the subdivision
currently headquartered in the City; create and implement              is only a small part of the large organization, the government
a business-retention program to provide quick responses to             business forms a relatively small portion of the corporation's
companies in the City; and arrange and host ten recruiting             total revenue. In this scenario, the organization may be
trips, or “Signature Events,” for Houston-based executives to          said to be supported “in part” by public funds. Moreover,



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

there may be more overlap between “in part” and the                Applying the TPIA's plain and unambiguous language, we
neighboring statutory language than the dissent allows. While      hold that GHP is not “supported in whole or in part by
we generally attempt to avoid treating statutory language          public funds” and thus is not a “governmental body” under
as surplusage, “there are times when redundancies are              the TPIA. Because the relevant provisions of the TPIA
precisely what the Legislature intended.” In re Estate of          are unambiguous, we do not apply the analysis outlined in
Nash, 220 S.W.3d 914, 917–18 (Tex.2007); see also In re            Kneeland v. National Collegiate Athletic Ass'n, 850 F.2d 224
City of Georgetown, 53 S.W.3d 328, 336 (Tex.2001) (noting          (5th Cir. 1988), nor any other extra-textual construct. We
that statutory redundancies may mean that “the Legislature         therefore reverse the court of appeals' judgment and render
repeated itself out of an abundance of caution, for emphasis,      judgment for Greater Houston Partnership.
or both”). Regardless of whether such drafting caution is at
work here, the point remains that there are a host of possible
explanations addressing the dissent's concerns.
                                                                   JUSTICE BOYD filed a dissenting opinion, in which
                                                                   JUSTICE JOHNSON and JUSTICE WILLETT joined.

                       III. Conclusion
                                                                   JUSTICE BOYD, joined by JUSTICE JOHNSON and
Amidst all the argument attempting to classify GHP as              JUSTICE WILLETT, dissenting.
a governmental body, it is worth recalling precisely what          Forty-two years ago, the Texas Legislature passed what has
GHP is not: GHP is not a government agency, nor is it              become “widely regarded as the strongest and most successful
a quasi-public agency specifically listed under the Texas          open government law in the country.” 1 Just three years
Government Code as a “governmental body.” GHP does                 later, in this Court's first opinion addressing the new Texas
not rely on its government contracts to sustain itself as a        Open Records Act, 2 we confirmed that it is the Legislature's
going concern; as all parties acknowledge, the government          policymaking role to balance “the public's right of access”
funds it receives constitute a relatively minuscule portion of     against “potential abuses of the right,” and the Court's role is
 *67 GHP's annual budget. The only way GHP can qualify             merely “to enforce the public's right of access given by the
as a “governmental body,” then, is if it can be said to be         Act.” Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540
“supported in whole or in part by public funds.”                   S.W.2d 668, 675 (Tex.1976). Balancing these interests, the
                                                                   Legislature decided that the Act should apply to “the part,
GHP, like countless chambers of commerce nationwide,               section, or portion” of any “organization [or] corporation ...
provides marketing, consulting, and event-planning services        that is supported in whole or in part by public funds.” TEX.
to the City and other clients pursuant to quid pro quo             GOV'T CODE § 552.003(1)(A)(xii). That may be bad policy,
contracts. Like the lobbying shops and law firms that also         or it may be good policy, but it is the policy of Texas, and this
populate the State payroll, GHP shares many common                 Court's only task is to enforce it.
objectives with the City, but without more, such shared
interests can hardly transform a service provider into             1       City of Dall. v. Abbott, 304 S.W.3d 380, 395
a government appendage. A private entity engaged in
                                                                           n.5 (Tex.2010) (Wainwright, J., dissenting); see
economically delicate work should not be subjected to                      also CHARLES L. BABCOCK ET AL., OPEN
invasive disclosure requirements merely because it counts                  GOVERNMENT GUIDE: OPEN RECORDS AND
the government as one client among many. Transparency                      MEETINGS LAWS IN TEXAS 1–2 (6th ed. 2011)
is a real concern, to be sure, and the TPIA's liberal-                     (describing Texas Public Information Act as “among the
construction mandate reflects the depth of this interest. But              strongest in the nation” and “among the most liberal
liberal construction is not tantamount to boundless reach. Yet,            in the United States”), available at http://www.rcfp.org/
even if not directly subject to disclosure obligations under the           rcfp/orders/docs/ogg/TX.pdf.
TPIA, GHP's transactions with the government are hardly in         2       Act of May 19, 1973, 63d Leg., R.S., ch. 424, 1973 Tex.
a black box; the City—which is indisputably a “governmental
                                                                           Gen. Laws 1112–18 (codified at TEX. REV. CIV. STAT.
body”—must disclose information regarding its contractors,                 art. 6252–17a). In 1993, the Legislature codified the Act
including GHP.                                                             in the Texas Government Code and renamed it the Texas
                                                                           Public Information Act. Act of May 4, 1993, 73d Leg.,
                                                                           R.S., ch. 268, § 1, secs. 552.001–.353, 1993 Tex. Gen.



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

       Laws 583, 594–607 (codified at TEX. G OV'T CODE §§          at issue, and the evidence here regarding the Partnership and
       552.001–.353).                                              its support.
To enforce the Legislature's policy choice in this case, we
must decide what it *68 means for a “part, section, or
                                                                   A. Requirements of the Act
portion” of a corporation to be “supported in whole or in
part by public funds.” See id. The Court adopts the narrowest      The Public Information Act requires the “officer for public
construction possible, identifying two requirements that
                                                                   information of a governmental body” 3 to “promptly produce
appear nowhere in the statute's language. The Court's all-
                                                                   public information” upon request. TEX. GOV'T CODE §
or-nothing construction is irreconcilable with the provision's
                                                                   552.221(a). “Public information” means information “that is
express inclusion of a “part, section, or portion” of an entity
                                                                   written, produced, collected, assembled, or maintained under
that is “supported in whole or in part by public funds.” See
                                                                   a law or ordinance or in connection with the transaction of
id. (emphasis added). Striving to be faithful to the Act's plain
                                                                   official business,” either (1) “by a governmental body;” (2)
language, mindful of its express mandate that courts construe
                                                                   “for a governmental body” if the governmental body
it liberally in favor of access to information, and respectful
                                                                   owns the information, has a right of access to it, or
of the many prior decisions of the Texas Attorneys General
                                                                   “spends or contributes public money for the purpose of
charged with interpreting and enforcing the Act, I would hold
                                                                   writing, producing, collecting, assembling, or maintaining the
that a “part, section, or portion” of a private organization
                                                                   information;” or (3) “by an individual officer or employee
or corporation is “supported in whole or in part by public
                                                                   of a governmental body in the officer's or employee's
funds” and thus a “governmental body” if it (1) receives
                                                                   official capacity and the information pertains to official
public funds, (2) not as compensation or consideration paid
                                                                   business of the governmental *69 body.” Id. § 552.002(a).
in exchange for “specific goods” or “specific measurable
                                                                   “Information is in connection with the transaction of official
services,” but as a general or unrestricted payment provided
                                                                   business if the information is created by, transmitted to,
to subsidize or underwrite the entity's activities, and (3)
                                                                   received by, or maintained by an officer or employee of
those activities promote a purpose, interest, or mission that
                                                                   the governmental body in the officer's or employee's official
the governmental and private entities share and would each
                                                                   capacity, or a person or entity performing official business or
pursue even in the absence of their contractual relationship.
                                                                   a governmental function on behalf of a governmental body,
Because the evidence establishes all three of these elements in
                                                                   and pertains to official business of the governmental body.”
this case, I would hold on this record that the Greater Houston
                                                                   Id. § 552.002(a-1).
Partnership is a governmental body. Because the Court holds
otherwise, I respectfully dissent.
                                                                   3      An “officer for public information” is the governmental
                                                                          body's chief administrative officer (or, in the case of a
                                                                          county, an elected county officer), and the head of each
                               I.                                         department within the governmental body is the officer's
                                                                          agent for purposes of complying with the Act. TEX.
                                                                          GOV'T CODE §§ 552.201–.202.
                         Background
                                                                   The Act does not require a governmental body to produce
This case presents a single question of statutory construction:    public information that is “considered to be confidential by
what does the Texas Public Information Act mean when               law, either constitutional, statutory, or by judicial decision.”
it refers to a “part, section, or portion” of an entity            Id. § 552.101. The Act itself provides numerous other
that is “supported in whole or in part by public funds”?           exceptions to its disclosure requirement, which include,
Id. Purporting to rely on “[f]amiliar interpretive guides          among other things, certain personnel records, id. § 552.102,
and established canons of construction,” ante at 59, the           litigation records, id. § 552.103, information that “would
Court discards over forty years of legal interpretations and       give advantage to a competitor or bidder,” id. § 552.104,
announces a brand new interpretation that, at best, reflects the   attorney-client information, id. § 552.107, trade secrets and
Court's concerns instead of the Legislature's language. In light   commercial financial information, id. § 552.110, personal
of the Court's analysis, and to place the issue in perspective,    and family information of governmental employees, id.
I begin by highlighting the Act's relevant requirements, the       § 552.117(a), and “information [that] relates to economic
reasons for its enactment, prior constructions of the language     development negotiations involving a governmental body



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

and a business prospect that the governmental body seeks                TEX. , www.texasattorneygeneral.gov/opinion/about-
to have locate, stay, or expand in or near the territory of             attorney-general-opinions (last visited June 22, 2015).
the governmental body,” id. § 552.131(a). The Act does                  In addition, the Public Information Act authorizes and
not allow a governmental body to unilaterally decide for                requires the Attorney General to issue a “decision,”
                                                                        in the form of a “written opinion,” announcing
itself whether it can withhold requested information. Instead,
                                                                        whether a governmental body may withhold information
a governmental body that wishes to withhold information
                                                                        in response to a request under the Act. TEX.
in response to a request must ask the Attorney General to
                                                                        GOV'T CODE §§ 552.301(a), .306(a), (b). Pursuant
decide whether the information fits within one of the Act's
                                                                        to this authority, Attorneys General sometimes issue
exceptions. Id. § 552.301(a).                                           “open records decisions,” which “are formal opinions
                                                                        relating to the Public Information Act” that “usually
It is difficult to overstate the Attorney General's role in             address novel or problematic legal questions and are
this process. The Act assigns to the Attorney General the               signed by the Attorney General.” See Open Records
duty to “maintain uniformity in the application, operation,             Decisions (ORDS), OFFICE OF THE ATT'Y GEN. OF
and interpretation” of the Act and authorizes the Attorney              TEX. , www.texasattorneygeneral.gov/og/open-records-
General to “publish any materials, including detailed and               decisions-ords (last visited June 22, 2015). These
comprehensive written decisions and opinions, that relate               decisions are named numerically using the initials
to or are based on this chapter.” Id. § 552.011. Upon                   “ORD” as a prefix. See id. More often, Attorneys General
                                                                        have resolved open records questions by issuing “open
receipt of a governmental body's request for a decision,
                                                                        records letter rulings,” which “[u]nlike Open Records
the Attorney General considers comments and arguments
                                                                        Decisions, [are] informal letter rulings ... applicable
from any interested person, id. § 552.304(a), and then must
                                                                        only to the specific documents and circumstances
“promptly render a decision” on whether the requested                   surrounding them[.]” See Open Records Letter Rulings
information is within one of the Act's exceptions, id. §                (ORLs), OFFICE OF THE ATT'Y GEN. OF TEX. ,
552.306(a); see also id. § 552.306(b) (requiring the Attorney           www.texasattorneygeneral.gov/open/index_orl.php (last
General to issue “a written opinion” and provide a copy                 visited June 22, 2015). These rulings are named
to the requestor). Through its Open Records Division, the               numerically using the initials “OR” and the year of
Attorney General's Office issues thousands of open records              issuance as a prefix. See id. Through the years, Texas
letter rulings every year, including more than 23,000 in 2014,          Attorneys General have utilized all three methods to
                                                                        address open records issues, including the issue of what
and it is on pace to surpass that number this year. 4 If a
                                                                        constitutes a “governmental body” under the Act.
governmental body fails to *70 request an Attorney General
decision when and as required, the requested information “is     If a governmental body refuses to request an Attorney
presumed to be subject to required public disclosure and must    General decision or refuses to produce public information
be released unless there is a compelling reason to withhold      or information that the Attorney General has determined
the information.” Id. § 552.302.                                 is public and not excepted from disclosure, the Attorney
                                                                 General or a requestor may file suit for a writ of
4                                                                mandamus compelling the governmental body to make
       See Open Records Letter Rulings (ORLs),
                                                                 the information available. Id. § 552.321. Conversely, a
       OFFICE OF THE ATT'Y GEN. OF TEX. ,
       www.texasattorneygeneral.gov/open/index_orl.php (last     governmental body may file suit against the Attorney
       visited June 22, 2015). Texas law authorizes the          General, seeking declaratory relief from compliance with the
       Attorney General to announce legal determinations in      Attorney General's decision. Id. § 552.324(a). In that suit,
       various forms. The Government Code, for example,          however, a governmental body can only rely on exceptions
       authorizes the Attorney General to provide “a written     it asserted when it requested the Attorney General's decision,
       opinion” to certain governmental officials addressing     unless the exception is based on a federal law requirement or
       “a question affecting the public interest or concerning   involves another person's property or privacy interests. Id. §
       the official duties of the requesting person.” TEX.       552.326(a), (b).
       GOV'T CODE § 402.042(a). The Attorney General's
       determinations under this authority are commonly
                                                                 The Act's requirements apply only to a “governmental body,”
       referred to as “attorney general opinions” and are
                                                                 which the Act defines to mean:
       named numerically using the initials of the issuing
       Attorney General as a prefix. See About Attorney
       General Opinions, OFFICE OF THE ATT'Y GEN. OF



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

                                                                  The Public Information Act is unique in its extensive
  (i)      a board, commission, department, committee,            explanation of the policies that led to its enactment. As
        institution, agency, or office that is within or is       the Court explains, the Legislature first adopted the Act
        created by the executive or legislative branch of state   in response to the “Sharpstown scandal.” Ante at 57. The
        government and that is directed by one or more elected    Act begins by expressing the “fundamental philosophy” that
        or appointed members;                                     “government is the servant and not the master of the people”
                                                                  and “the policy of this state that each person is entitled,
  (ii) a county commissioners court in the state;
                                                                  unless otherwise expressly provided by law, at all times to
  (iii) a municipal governing body in the state;                  complete information about the affairs of government and
                                                                  the official acts of public officials and employees.” TEX.
  (iv) a deliberative body that has rulemaking or quasi-          GOV'T CODE § 552.001(a). While the people of Texas
     judicial power and that is classified as a department,       have delegated governing authority to public employees, they
     agency, or political subdivision of a county or              “do not give their public servants the right to decide what
     municipality;                                                is good for the people to know and what is not good for
                                                                  them to know.” Id. Because “[t]he people insist on remaining
  (v) a school district board of trustees;                        informed so that they may retain control over the instruments
                                                                  they have created,” the Act expressly provides that it “shall
  (vi) a county board of school trustees;
                                                                  be liberally construed to implement this policy.” Id. Courts
  (vii) a county board of education;                              must construe the Act's provisions “in favor of disclosure
                                                                  of requested information.” Jackson v. State Office of Admin.
  (viii) the governing board of a special district;               Hearings, 351 S.W.3d 290, 293 (Tex.2011); see also TEX.
                                                                  GOV'T CODE § 552.001(b) (“This chapter shall be liberally
  (ix) the governing body of a nonprofit corporation
                                                                  construed in favor of granting a request for information.”).
     organized under Chapter 67, Water Code, that provides
     a water supply or wastewater service, or both, and is
     exempt from ad valorem taxation under Section 11.30,         C. Prior Constructions of the Act
     Tax Code;
                                                                  Pursuant to their responsibility to “maintain uniformity in the
  (x) a local workforce development board created under           application, operation, and interpretation” of the Act, TEX.
     Section 2308.253;                                            GOV'T CODE § 552.011, Texas Attorneys General have
                                                                  issued numerous opinions addressing whether private entities
  (xi) a nonprofit corporation that is eligible to receive
                                                                  —including several chambers of commerce and similar
     funds under the federal community services block grant
                                                                  organizations—were “supported in whole or in part by public
     program and that is authorized *71 by this state to serve
                                                                  funds.” Respecting the Attorney General's unique role, courts
     a geographic area of the state; and
                                                                  have given deference to Attorney General interpretations and
  (xii) the part, section, or portion of an organization,         applications, most notably the Fifth Circuit in Kneeland v.
     corporation, commission, committee, institution, or          National Collegiate Athletic Ass'n, 850 F.2d 224, 228 (5th
     agency that spends or that is supported in whole or in       Cir. 1988).
     part by public funds[.]

Id. § 552.003(1)(A)(i)–(xii). The question here is whether        1. Pre-Kneeland Attorney General Decisions
the Greater Houston Partnership is “supported in whole or in
                                                                  In 1973, shortly after the Act became effective, the Attorney
part by public funds,” and thus a “governmental body” under
                                                                  General's very first open records decision addressed the
part (xii). “Public funds” means “funds of the state or of a
                                                                  statutory language we address today and concluded that a
governmental subdivision of the state.” Id. § 552.003(5).
                                                                  private bank was not “supported in whole or in part by
                                                                  public funds” merely because it received and held deposits of
B. Reasons for the Act                                            public funds. Tex. Att'y Gen. ORD–1 (1973). Six years later,
                                                                  the Attorney General concluded that an organization very
                                                                  similar to the Partnership—a private, nonprofit corporation



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

chartered to promote the interests of the Dallas–Fort Worth        Att'y Gen. Op. No. JM–116 (1983) (quoting Tex. Att'y Gen.
metropolitan area—was a governmental body under the Act.           ORD–228). The conference's constitution stated one of its
Tex. Att'y Gen. ORD–228 (1979). Pursuant to a contract,            purposes was to aid members in incorporating intercollegiate
the City of Fort Worth paid the corporation $80,000 to             athletics within their educational programs and to “place
“[c]ontinue its current successful programs and implement          and maintain such athletics under the same administrative
such new and innovative programs as will further its corporate     and academic control.” Id. The constitution did not identify
objectives and common *72 City's interests and activities”         any specific, measurable services that the conference would
over a three-year period. Id. The Attorney General concluded       provide in exchange for the public funds. Id.
that, by using the phrase “supported in whole or in part,”
the Legislature “did not intend to extend the application of       The Attorney General later determined that a private high
the Act to private persons or businesses simply because they       school and a private nonprofit water supply corporation
provide specific goods or services under a contract with a         were not governmental bodies because neither of them
governmental body.” Id. But this contract did not “impose          received any public funds. Tex. Att'y Gen. Op. Nos. JM–
a specific and definite obligation on the [corporation] to         154 (1984), JM–596 (1986). Then, in 1987, the Attorney
provide a measurable amount of service in exchange for a           General concluded that a volunteer fire department was a
certain amount of money as would be expected in a typical          governmental body under the Act because fire protection is
arms-length contract for services between a vendor and             “traditionally provided by governmental bodies,” volunteer
purchaser.” Id. Thus, not every “contract with a governmental      fire departments have “strong affiliations with public
body causes the records of a private contractor to be open,”       agencies,” and the contract provided the department with
but a private entity is supported by public funds, and is thus a   funds “to carry on its duties and responsibilities,” which
“governmental body,” when the public funds are “used for the       the Attorney General considered to be for its “general
general support of the [entity] rather than being attributable     support.” Tex. Att'y Gen. Op. No. JM–821 (1987). The
to specific payment for specific measurable services.” Id.         Attorney General stated that the “test” for whether an entity
                                                                   is a governmental body under the Act “cannot be applied
Three years later, the Attorney General relied on ORD–228 to       mechanically” and that the “precise *73 manner of funding
find that another chamber-of-commerce-like organization—           is not the sole dispositive issue.” Id. Instead, the Attorney
a private, nonprofit entity created to promote manufacturing       General considered “[t]he overall nature of the relationship,”
and industrial development in the Bryan area—was a                 and concluded “a contract or relationship that involves public
governmental body because the City of Bryan's contractual          funds and that indicates a common purpose or objective or
payment of $48,000 was like an “unrestricted” grant,               that creates an agency-type relationship” will bring the private
rather than payment for specific measurable services. Tex.         entity within the Act's definition of governmental body. Id.
Att'y Gen. ORD–302 (1982) (noting that the situation was
“virtually identical” to that in ORD–228). That same year,
the Attorney General concluded that a private medical              2. Kneeland v. NCAA
service provider for the Amarillo Hospital District was not a
                                                                   In 1988, the Fifth Circuit was asked whether the National
governmental body under the Act because the parties' contract
                                                                   Collegiate Athletic Association (NCAA) and the former
prescribed specific measurable services, including ambulance
                                                                   Southwest Conference (SWC), which received public funds
services, for which the provider received a monthly sum
                                                                   from several Texas public universities, were “supported in
“equal to the difference between cash receipts and approved
                                                                   whole or in part by public funds” and thus “governmental
operating expenditures of the ambulance service.” Tex. Att'y
                                                                   bodies” under the Act. Kneeland, 850 F.2d at 228. In
Gen. ORD–343 (1982).
                                                                   addressing this issue, the Court expressly based its analysis
                                                                   on the Attorneys General's prior decisions, noting that
The following year, the Attorney General determined
                                                                   “[t]he usual deference paid to formal opinions of state
that a proposed athletic conference consisting of member
                                                                   attorneys general is accentuated in this case because the
universities would be a governmental body under the Act
                                                                   Texas Legislature has formally invited its Attorney General
because each university would pay an upfront “membership
                                                                   to interpret the Act when asked to do so.” Id. at 228–
fee” and subsequent annual fees that would be used for the
                                                                   29. Construing the statute's language and extrapolating
conference's “general support ... rather than being attributable
                                                                   principles from the Attorneys General's decisions, the Court
to specific payments for specific measurable services.” Tex.
                                                                   cobbled together the following criteria—now known as the


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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

“Kneeland test”—for determining whether a private entity is       the San Antonio Chamber of Commerce to coordinate the
“supported ... by public funds” and thus a governmental body      annual Fiesta celebration was not a governmental body.
under the Act:                                                    Tex. Att'y Gen. ORD–569 (1990). The city designated the
                                                                  commission as its “official agency” responsible for planning,
  • “The Act does not apply to ‘private persons or businesses     coordinating, and financially supporting the festival and gave
     simply because they provide specific goods or services       the commission the right, subject to necessary approvals,
     under a contract with a government body.’ ” Id. at 228       to lease city-owned premises, obtain permits for parades
     (quoting Tex. Att'y Gen. ORD–1).                             and concession stands along parade route, grant permission
                                                                  to place seating along parade route, and assign its permit
  • “[A]n entity receiving public funds becomes a
                                                                  and lease rights to other entities sponsoring the event.
    governmental body under the Act, unless its relationship
                                                                  Id. The Attorney General nevertheless concluded that the
    with the government imposes ‘a specific and definite
                                                                  commission was not a governmental body because it did
    obligation ... to provide a measurable amount of service
                                                                  not receive any public funds. Id. (“The threshold question is
    in exchange for a certain amount of money as would be
                                                                  whether the commission receives any funds from the City of
    expected in a typical arms-length contract for services
                                                                  San Antonio.”). The Attorney General rejected the argument
    between a vendor and purchaser.’ ” Id. (quoting Tex.
                                                                  that money the commission received from the sale of tickets
    Att'y Gen. Op. No. JM–821, which quotes Tex. Att'y
                                                                  for seating along the parade route was “public funds” because
    Gen. ORD–228).
                                                                  the money would otherwise have been paid to the city. Id.
  • “[A] contract or relationship that involves public funds      (“By requiring the commission to get a permit for erecting
     and that indicates a common purpose or objective or that     bleachers and limiting the charge per seat, the city is not
     creates an agency-type relationship between a private        granting public funds to the commission, nor do the charges
     entity and a public entity will bring the private entity     for seats constitute funds of the city.”).
     within the ... definition of a ‘governmental body.’ ” Id.
     (quoting Tex. Att'y Gen. Op. No. JM–821).                    In 1992, the Attorney General concluded that the Dallas
                                                                  Museum of Art was a governmental body under the Act,
  • “[S]ome entities, such as volunteer fire departments,         even though it received 85% of its revenue from private
    will be considered governmental bodies if they provide        sources. Tex. Att'y Gen. ORD–602 (1992). The city owned
    ‘services traditionally provided by governmental              some of the artwork at the museum, owned and maintained
    bodies.’ ” Id. (quoting Tex. Att'y Gen. Op. No. JM–821).      the premises housing the museum, and paid the museum's
                                                                  utilities, half of the museum employees' salaries, and a pro
Based on these principles and the Attorneys General's             rata portion of the insurance premiums. Id. The museum
decisions from which they were drawn, the Kneeland court          admitted that it received public funds but argued that it
held that the NCAA and SWC were not governmental bodies           received the funds in exchange for “known, specific, and
under the Act. Id. at 230–31. With respect to the NCAA,           measurable services” as opposed to general support. Id.
the court concluded that the universities “receive[d] a quid      Relying on Kneeland and the prior decisions, the Attorney
pro quo, in sufficiently identifiable and measurable quantities   General disagreed, concluding that while the city received
of services,” in exchange for the public funds they paid          “valuable services in exchange for its obligations” to the
to the NCAA. Id. at 230. Similarly, the court concluded           museum, those “highly specialized, unique services” could
that the SWC provided “specific and guageable services            not be “known, specific, or measurable,” and the city thus
which negate[d] the general support element required for a        instead provided funds for the museum's general support. Id.
governmental body designation.” Id. at 231.                       The Attorney General nevertheless held that the museum was
                                                                  not required to disclose the requested records because only
                                                                  the part of the museum supported by public funds was a
3. Post-Kneeland Attorney General Decisions                       governmental body, and the records related to a collection
                                                                  the museum owned as part of its permanent collection, not to
Attorneys General have had several opportunities to address
                                                                  the part of the museum for which the city provided “direct
the issue since Kneeland, and in doing so have adopted
                                                                  support.” Id. (noting the city's ownership of the building in
 *74 the federal court's synopsis of the principles from their
                                                                  which the collection was housed and its payment of a portion
prior decisions. A few years after Kneeland, the Attorney
                                                                  of the overhead expenses was “tangential” and “insufficient
General concluded that a private commission created by


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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

to bring documents relating to the collection within the scope   contract, the [Partnership] has not sufficiently demonstrated
of the act”).                                                    that the nature of the services it provides are known,
                                                                 specific, or measurable.” Id. “Consequently,” the Attorney
Again addressing chamber-of-commerce-type entities, the          General concluded, “the [Partnership's] records concerning
Attorney General conducted a similar analysis in holding         its operations that are directly supported by governmental
that the Arlington Chamber of Commerce and the Arlington         bodies are subject to the Act as public information.” Id.
Economic Development Foundation were governmental                (emphasis added).
bodies under the Act. See Tex. Att'y Gen. ORD–621 (1993).
The foundation admitted that it received public funds but        In addition to arguing that it was not a governmental body,
argued that it did so in exchange for specific, measurable       the Partnership alternatively relied on the Act's exceptions to
services. Id. The Attorney General disagreed, concluding         disclosure for certain economic development information and
that while the city received “valuable services in exchange      for certain email addresses. See id.; TEX. GOV'T CODE §§
for the public funds,” the agreement failed “to impose           552.131 (excepting certain information relating to economic
on the foundation a specific and definite obligation to          development negotiations), 552.137 (excepting certain email
provide a measurable amount of services in exchange for          addresses). The Attorney General agreed in part and disagreed
a certain amount of money, as one would expect *75 to            in part, instructing the Partnership to release some but not
find in a typical arms-length contract.” Id. The Attorney        all of the documents submitted to the Attorney General for
General concluded that the chamber of commerce was also          review. See Tex. Att'y Gen. OR2004–4221.
a governmental body, even though it received public funds
through the foundation rather than from the city directly. Id.   In 2007, the Attorney General again relied on Kneeland
                                                                 and the distinction between use of public funds for “general
Eight years later, the Attorney General reached the same         support” as opposed to payment for “specific and measurable
result with respect to the Round Rock Chamber of Commerce,       services” to conclude that a family planning service provider
observing that its contract with the City of Round Rock          that contracted with the Department of State Health Services
neither restricted the chamber's use of the public funds it      was a governmental body under the Act. Tex. Att'y Gen.
received nor imposed any “specific and definite obligation to    OR2007–06167 (2007). Similarly, in 2011, the Attorney
provide a measurable amount of services in exchange for a        General decided that channel Austin, a nonprofit corporation
certain amount of money, as one would expect to find in a        that contracted with the City of Austin “to manage the
typical arms-length contract.” Tex. Att'y Gen. OR2001–4849       equipment, building, resources, and the three channels for
(2001).                                                          Public Access,” received public funds as an “unrestricted
                                                                 grant” for its “general support rather than payment for specific
And a few years after that, the Attorney General held that       services.” Tex. Att'y Gen. OR2011–17967 (2011).
the Greater Houston Partnership itself was a governmental
body under the Act, under a similar analysis. Tex. Att'y         In a 2008 formal opinion, the Attorney General observed,
Gen. OR2004–4221 (2004). The Partnership specified in            consistent with the Kneeland test, that it is sometimes
its request for an Attorney General's ruling that the            significant that the private entity has a “common purpose
requested records related to a project being handled             or objective or one that creates an *76 agency-type
by a specific part of the Partnership, the Economic              relationship” with the governmental entity, or that it performs
Development Division. At that time, different contracts          services “traditionally provided by governmental bodies.”
governed the Partnership's relationship with the City of         Tex. Att'y Gen. Op. No. GA–666 (2008). But the Attorney
Houston. Examining those contracts' provisions—including         General explained that the “primary test” is “whether the
one that obligated the Partnership to “support the efforts of    entity receives public funds for the general support of its
the University of Houston Small [B]usiness Development           activities, rather than using those funds to perform a specific
Center in the conduct of the Director Business Assistance        and definite obligation.” Id. (determining that an association
Program, designed to assist and promote the efforts of local     of appraisal districts, which received membership fees from
businesses and entrepreneurs to form new business ventures       governmental entities in exchange for promoting “effective
or to expand existing business ventures”—the Attorney            and efficient functioning and administration of appraisal
General determined that, “[a]lthough ... the city is receiving   districts in Texas,” was a governmental body). Four years
valuable services in exchange for its obligations under this     later, the Attorney General held that a health services provider



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

was a governmental body under the Act because the contract        any other reports the Directors request; to produce any non-
language evidenced a “common purpose or objective between         confidential records the City Attorney requires to evaluate the
the health service and the district such that an agency-type      Partnership's compliance with the contract; and to inform the
relationship [wa]s created.” Tex. Att'y Gen. OR2012–11220         City of any claims arising out of the Partnership's failure to
(2012) (considering contract in which the parties agreed “to      pay its employees, subcontractors, or suppliers. The contracts
cooperate to provide services to the residents of Nacogdoches     granted the City “full membership and exclusive benefits as
County who are in need of service avoiding duplication of         a General Partner” of the Partnership, *77 which included
services when possible” and “to refer patients for services,      membership in the Partnership's policy-level committees,
as needed, and in doing so will provide documentation for         but prohibited the City from participating on any of the
patient records when needed”).                                    Partnership's governing boards.

                                                                  The 2008 agreement differs from the 2007 agreement
D. The Partnership's “Support”                                    in several respects. While the 2007 agreement required
                                                                  the Partnership to “implement a program” to increase
With the statute's language and these prior decisions in
                                                                  investments in the Houston area, the 2008 agreement
mind, I turn to the facts at issue here. The Greater
                                                                  required the Partnership to provide “specific, measurable
Houston Partnership is a private nonprofit corporation that
                                                                  services” to increase investments. While the 2007 contract
functions as a chamber of commerce to promote job
                                                                  permitted the City to require the Partnership to terminate
creation, increased trade, and capital investment in the
                                                                  any employee or subcontractor whose work the Directors
greater Houston area. For many years, including 2007 and
                                                                  deemed unsatisfactory, the 2008 contract only required the
2008, the Partnership entered into an annual “Agreement for
                                                                  Partnership to “consider removing” any such employee or
Professional Services” with the City of Houston, in which
                                                                  subcontractor. And unlike the 2007 agreement, the 2008
the Partnership agreed to perform certain marketing, research,
                                                                  agreement stated that the City's payments were solely for
and promotional services designed “to increase investment
                                                                  services rendered and were not intended as general support
in, and to improve the economic prosperity of Houston and
                                                                  for the Partnership's other activities, and expressly provided
the Houston Airport System.” 5 The contracts required that        that nothing in the agreement shall be construed to imply that
the scope of the Partnership's services “support the goals,       the Partnership is subject to the Texas Public Information Act.
visions, and objectives outlined in the Partnership's Strategic
Plan.” (Emphasis added). In exchange for these services, the
                                                                  In May 2008, 6 Houston-area resident Jim Jenkins submitted
City agreed to pay the Partnership a lump sum amount of
                                                                  a Public Information Act request to the Partnership, asking
$196,250.00 per quarter. The City's payments constituted less
                                                                  that it provide him with “a copy of the check register ...
than 8% of the Partnership's total annual revenue, 90% of
                                                                  for all checks [the Partnership] issued for the year 2007,”
which came from dues the Partnership's members paid.
                                                                  including “for each check issued: check number, check date,
                                                                  payee name, and check amount.” Jenkins later submitted a
5      The Local Government Code authorizes municipalities        second request, seeking the same information for all checks
       to contract with private entities like the Partnership
                                                                  the Partnership issued in 2008. The Partnership refused to
       “for the administration of a program” to promote “local
                                                                  provide the requested information, and instead asked the
       economic development and to stimulate business and
                                                                  Attorney General to decide whether the Partnership is a
       commercial activity in the municipality.” TEX. LOC.
                                                                  “governmental body” subject to the Public Information Act.
       GOV'T CODE § 380.001.
                                                                  The Partnership did not assert that only “a part, section,
The services agreements specified that the Partnership was        or portion” of the Partnership is “supported in whole or
an independent contractor, but they also gave the City            in part by public funds,” as it had successfully argued in
certain rights to participate in and control some of the          2004. See Tex. Att'y Gen. OR2004–4221. Nor did it assert
Partnership's activities. Among other things, the Partnership     that any information in the check register was not “public
agreed to coordinate its efforts with the directors of the        information” or that one of the Act's exceptions applied, as
City's Department of Convention & Entertainment Facilities,       it had also asserted in 2004. See id. Instead, the Partnership
Department of Planning and Development, and the Houston           relied solely on its contention that it is not a governmental
Airport System (the Directors); to submit quarterly progress      body under the Act.
reports “describing in detail services performed”; to provide



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

6       The Partnership and City executed the 2008 services             First, the Partnership contends the phrase “supported ... by
        agreement in August 2008, a few months after receiving          public funds” unambiguously does not include the City's
        Jenkin's first request for information, which may explain       contractual payments to the Partnership. Next, the Partnership
        the differences we have described between the 2007 and          argues, even if the language is ambiguous, the Court should
        2008 agreements.                                                reject the Kneeland test because it is unclear and not
Consistent with its 2004 ruling, the Attorney General's Open            grounded in the statutory language. Third, if the Court does
Records Division ruled that the Partnership is a governmental           adopt the Kneeland test, the Partnership argues it is not
body and must comply with the Act's requirements. Tex.                  “supported ... by public funds” even under that test. The Court
Att'y Gen. OR2008–16062 (2008). The Partnership filed suit              agrees with the Partnership's first argument—that the statute
against the Attorney General to challenge the ruling, and               unambiguously does not apply to the Partnership—but also
Jenkins intervened. The trial court agreed with the Attorney            notes its displeasure with the Kneeland test. I disagree. I
General and held that the Partnership is a governmental body            would hold that the statute is ambiguous, adopt but clarify
under the Act. The Partnership appealed, and the court of               the Kneeland test, and conclude that under that test the
appeals affirmed, with one justice dissenting. 407 S.W.3d               Partnership “is supported in whole or in part by public funds.”
776. We initially denied the Partnership's petition for review,
but we later granted its motion for rehearing and its petition, to
                                                                        A. The Court's Interpretation
address when a private entity may qualify as a governmental
body under the Act.                                                     The Court begins its analysis by noting that the term
                                                                        “supported” can have several different meanings. Ante at
                                                                        72–75. Because “supported by” in the clause at issue
                                  II.                                   refers specifically to “public funds,” the Court concludes
                                                                        that the Act focuses solely on monetary support. Ante at
                                                                        72–75. The Court then proceeds to identify two different
              “Supported in Whole or In Part”                           requirements that must each exist for a private entity to
                                                                        receive monetary “support,” which I will refer to as the
The issue here is whether the Greater Houston Partnership is
                                                                        “sustenance” requirement and the “functional equivalent”
“supported in whole or in part by public funds” and is thus
                                                                        requirement. Ante at 58–59 (agreeing with Partnership's
a “governmental body” under the Act. 7 The interpretation               contention that definition only includes “entities that were
of the Act presents *78 questions of law. City of Garland               created or exist to carry out government functions and
v. Dall. Morning News, 22 S.W.3d 351, 357 (Tex.2000).                   whose existence are maintained in whole or in part with
In light of the Act's strong policy in favor of disclosure, a           public funds”). Although the Court asserts that it is simply
party seeking to withhold requested information bears the               applying a “plain language” approach to construing the
burden of proving that the information is not subject to                statute, ante at 58–59, and is not relying on any “extra-textual
disclosure under the Act. See Thomas v. Cornyn, 71 S.W.3d               analytical construct,” ante at 56, neither of the Court's two
473, 488 (Tex.App.–Austin 2002, no pet.) (holding that “a               requirements appears anywhere in the statute's language. I do
governing body should bear the burden of proving in a judicial          not agree that the Act's language “unambiguously” supports
proceeding that an exception to disclosure applies”).                   the judicial insertion of either requirement into its definition
                                                                        of a “governmental body.”
7       Although the Partnership has previously argued that
        requested records related solely to its Economic
        Development Division, see Tex. Att'y Gen. OR2004–               1. The “Sustenance” Requirement
        4221 (2004), it has made no similar effort to identify or
        limit the Act to any particular sections or divisions in this   Addressing the first requirement, the Court says “supported”
        case. Our issue is therefore whether the Partnership, as a      can mean (and here must mean) “sustenance, maintenance,
        whole, is “supported in whole or in part by public funds,”      or both.” Ante at 59. The Court provides this as the
        and not whether any particular “part, section, or portion”      “maintenance” definition of “supported”: “to pay the costs
        of the Partnership is.                                          of: maintain; to supply with the means of maintenance (as
The Partnership makes three arguments as to why it is not               lodging, food or clothing) or to earn or furnish funds for
a “governmental body” under the Public Information Act.                 maintaining[.]” Ante at 59 (quoting WEBSTER'S THIRD



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

NEW INT'L DICTIONARY 2297 (2002)). The Court then                       at least in part, by public funds,” ante at 60 (emphasis
concludes that “supported” cannot mean “maintenance” in                 added); and
this context *79 because otherwise the definition would
include “any private entity that received any public funds,”         • “we define ‘supported in whole or in part by public funds'
and “even a paper vendor with hundreds of clients would                 to include only those private entities or their sub-parts
qualify as a ‘governmental body’ merely by virtue of selling            sustained, at least in part, by public funds,” ante at 63
office supplies to a single state office.” Ante at 60.                  (emphases added).


In contrast to the “maintenance” definition, the Court gives       But despite these lip-service payments to the statute's
this “sustenance” definition of “supported”: “to provide a         language, the Court repeatedly holds that an entity (or any
basis for the existence or subsistence of: serve as the source     part, section, or portion of an entity) that receives public
of material or immaterial supply, nourishment, provender,          funds as sustenance (as opposed to maintenance) is not a
fuel, raw material, or sustenance of.” Ante at 59 (quoting         governmental body unless it cannot survive and pursue its
WEBSTER'S THIRD NEW INT'L DICTIONARY at 2297).                     mission without those funds:
The Court thus distinguishes between the “maintenance”
                                                                     • “defining ‘supported’ as ‘sustenance’ ensures that only an
meaning of “supported” and the “sustenance” meaning of
                                                                        entity, or its ‘part, section or portion,’ whose existence is
“supported” and concludes that in the context of the Act,
                                                                        predicated on the continued receipt of government funds
“supported by” can only mean the latter, so the Act applies
                                                                        would qualify as a ‘governmental body,’ ” ante at 60;
only to private entities “sustained, at least in part, by public
funds, meaning they would not perform the same or similar            • “[t]o be ‘sustained’ by public funds suggests the
services without public funds.” Ante at 53.                            existence of a financially dependent relationship
                                                                       between the governmental body and a private entity or
Although the Court reads far more into these two definitions           its subdivision,” ante at 60;
of “support” than I find there, as explained below, I generally
agree that the term “support” must refer here to monies paid         • “a private entity would qualify under a financially
as general funds to sustain the recipient, rather than funds           dependent construction *80 of ‘supported’ if it could
paid as consideration for specific goods or services. But the          not pursue its mission and objectives without the receipt
Court goes far beyond that principle today, and holds that             of public funds, even if that funding only partially
an entity is “supported in whole or in part by public funds”           financed the entity's endeavors. In short, an entity
only if the entity cannot survive without those funds. As a            ‘supported’ by public funds would not just receive
result, the Court writes the words “in part” completely out            government funds; it would require them to operate in
of the statutory definition. To be sure, the Court creates the         whole or in part,” ante at 61;
appearance that it is actually enforcing the statute as written
                                                                     • “[the Partnership] is not ‘supported’ by public funds
by referring to the “supported ... in part” language several
                                                                       because it receives only a small portion of its
times in its opinion:
                                                                       revenue from government contracts[, a]nd even if these
  • “requires us to decide whether the term ‘supported’                government contracts were eliminated, it could continue
    encompasses private entities ... sustained—in whole or             to operate given the substantial revenue derived from
    in part —by [public] funds,” ante at 53 (emphasis                  other non-governmental sources,” ante at 61;
    added);
                                                                     • “the statute encompasses only those private entities
  • “ ‘supported’ ... unambiguously includes only those                dependent on the public fisc to operate as a going
    entities at least partially sustained by public funding,”          concern,” ante at 61; and
    ante at 54 (emphasis added);
                                                                     • “An entity ... that does not depend on any particular
  • “[the Partnership] is not wholly or partially sustained by         revenue source to survive—public or private—is not
     public funds,” ante at 54 (emphasis added);                       sustained even in part by government funds,” ante at 63.

  • “the [Act] applies only to entities acting as the functional   The Court thus holds that a private entity that receives public
     equivalent of a governmental body that are ‘sustained’        funds can be a governmental body under the Act only if



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

it cannot “survive” or “exist” or “pursue its mission and          A relevant illustration is this: even if only 5% of the funds
objectives” without those public funds, even if those funds        that support the Court's hypothetical corporate subdivision
are just “one of several contributing sources.” I disagree. An     were public funds, the subdivision would still be “supported
entity that is “sustained” (as the Court uses that word) by        in part ” by those funds, and would thus be a governmental
funds it receives from several different sources is sustained      body under the Act's plain language. An entity “supported ...
“in part” by the funds from each of those sources, even if it      in part by public funds” is a governmental body, regardless
could survive and pursue its mission without the funds from        of whether it could “survive” or “pursue its mission” without
any one source. The Court asserts that “sustenance implies         those funds. See id. The Court's construction reads this
that if the government ceased to provide financial support,        language out of the Act by requiring the whole of the entity
the entity would be unable to meet its financial obligations.”     to live or die by the public fisc.
Ante at 60. But even if that were true, 8 “sustenance in
part ” implies the exact opposite. If “part” of an entity's
                                                                   2. The “Functional Equivalent” Requirement
“sustenance” comes from one source, it is “sustained in part
” by that source even if it could survive without that part.       The Court also holds that an entity is not “supported in
                                                                   whole or in part by public funds” unless it is “acting
8      The Court fails to identify any dictionary that defines     as the functional equivalent of a governmental body,”
       “supported” to mean financially dependent upon for          ante at 64, and providing “services traditionally considered
       its very existence. See ante at 59–60. While there are      governmental prerogatives or responsibilities,” ante at 62.
       many definitions of “support” that refer to “sustenance     As with its first requirement, the Court does not derive
       or maintenance” or even “a basis for the existence or       this requirement from the statutory definition at issue.
       subsistence of,” see ante at 59 (emphasis added), none      Subsection (xii) expressly identifies several types of entities
       of the definitions require an absolute dependence, and
                                                                   that typically are not public (or governmental) entities,
       in any event, the statute's definition expressly excludes
                                                                   including an “organization,” a “committee,” an “institution,”
       such a requirement by referring to support “in part.”
                                                                   and—importantly, here—a “corporation.” The Act says such
The Court attempts to justify its “surviv[al]” requirement         private entities are governmental bodies if they are “supported
by suggesting that the statute's “ ‘in part’ language may          in whole or in part by public funds,” not if they are acting
envision a multi-division entity that does business with the       as the “functional equivalent” of a governmental body or
government, but not uniformly and not across all units.”           performing traditional government responsibilities. TEX.
Ante at 66. “For instance,” the Court explains, if a “large        GOV'T CODE § 552.003(1)(A)(xii). The Court, however,
corporation” has a “subdivision” that “is wholly funded by         asserts three bases for imposing this requirement: (1) the Act's
government contracts,” but the government funds are only “a        “stated purpose”; (2) the statute's omission of “any broad
relatively small portion of the corporation's total revenue,”      reference to private entities”; and (3) the “scope and nature
the corporation “may be said to be supported ‘in part’ by          of the eleven other types of entities more clearly described
public funds.” Ante at 66. This illustration confuses the          as a ‘governmental body’ in the same provision,” ante at 61.
statute's reference to “supported in part” with its reference      I do not agree that any of these justifies writing the Court's
to the “part, section, or portion” of an entity. The statute       “functional equivalent” requirement into the statute.
provides that the “part, section, or portion” of an entity
is a governmental body if it is “supported in whole or in          First, the Court suggests that requiring a private entity to
part by public funds.” TEX. GOV'T CODE § 552.003(1)                be the “functional equivalent” of a governmental body is
(A)(xii). The Court is correct that, if one subdivision of a       necessary to ensure that our construction of “supported” is
large corporation is “supported in whole ... by public funds,”     “compatible with” the Act's “stated purpose.” Ante at 59.
then the corporation itself is “supported ... in part by public    This “stated purpose,” the Court explains, is to provide
funds.” But the statute permits the corporation to limit the       the public with “complete information about the affairs of
Act's application to the subdivision by showing that only          government and the official acts of public officials and
that subdivision (i.e., that “part, section, or portion” of the    employees” to “allow the public to ‘retain control over
corporation) *81 is “supported in whole or in part” by             the instruments they have created.’ ” Ante at 59 (quoting
public funds. The illustration the Court “conceptualize[s]”        TEX. GOV'T CODE § 552.001(a)). Although the Court
has nothing to do with the Court's “surviv[al]” requirement.       makes no effort to explain why this purpose necessitates or
                                                                   implies the “functional equivalent” requirement, I presume


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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

the Court finds hidden meaning in the purpose statement's                 string of particularly broad terms to reference private
reference to the “affairs of government,” the “acts of public             entities of all types: “the part, section, or portion of
officials and employees,” and the “instruments ... created,”              an organization, corporation, commission, committee,
as if the words I have emphasized exclude any purpose to                  institution, or agency that spends or is supported in whole
                                                                          or in part by public funds[.]” TEX. GOV'T CODE §
require disclosure of information held by a private entity.
                                                                          552.001(1)(A)(xii). The “omission” on which the Court
But to emphasize a different word, the statute's purpose is to
                                                                          relies simply does not exist.
provide “complete information” about those affairs, acts, and
instruments. The Legislature may have believed that the only       For the third (though “not dispositive”) reason for requiring
way to ensure the public has “complete” information about          a private entity to be the “functional equivalent” of a
what their government is doing is to treat some private entities   governmental body, the Court relies on the “canon of
as governmental bodies under the Act. Whatever we may              statutory construction known as noscitur a sociis.” Ante at 61.
presume about what the Legislature may have “believed,”            This canon provides “that a word is known by the company
what the Legislature “said” was that “governmental body”           it keeps.” Fiess v. State Farm Lloyds, 202 S.W.3d 744, 750
includes any entity “supported in whole or in part *82             (Tex.2006) (quoting Gustafson v. Alloyd Co., 513 U.S. 561,
by public funds,” not any entity that is the “functional           575, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)). It “directs that
equivalent” of a governmental body.                                similar terms be interpreted in a similar manner,” TGS–
                                                                   NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441
As a second reason for requiring a private entity to be            (Tex.2011), but there is no similarity between the words
the “functional equivalent” of a governmental body, the            in definition (xii)—an “organization” or “corporation” that
Court asserts that the definition does not include “any broad      is “supported in whole or in part by public funds”—and
                                                                   those in the preceding definitions. If definition (xii) provided
reference to private entities.” Ante at 60. 9 Assuming that the
                                                                   “general” language, following “specific and particularized
Legislature “carefully omitted” any such “broad reference,”
                                                                   enumerations” in the first eleven definitions, then we would
and presuming that the Legislature “purposefully selected”
                                                                   “treat the general words as limited and apply them only to the
this omission, the Court concludes that the definition, “as
                                                                   same kind or class of [things] as those expressly mentioned.”
applied to private entities, must be filtered through the Act's
                                                                   City of San Antonio v. City of Boerne, 111 S.W.3d 22,
purpose and function of allowing access to instrumentalities
                                                                   29 (Tex.2003). But definition (xii) uses specific language,
of government,” and thus “only applies to private entities
                                                                   inherently different than the language of the other definitions,
acting as the functional equivalent of the government.” Ante
                                                                   and thus refers to something specific, not just a catch-all to
at 60. Respectfully, I fail to follow the Court's logic. It
                                                                   conclude the preceding definitions. Under noscitur a sociis,
might be logical to conclude from the omission of any
                                                                   we should look to the words “immediately surrounding” the
“broad reference” to private entities that the Legislature did
                                                                   phrase “supported by,” which include the words “public *83
not intend to include all private entities as “governmental
                                                                   funds” and, importantly, “in whole or in part ” (which the
bodies.” But it is illogical to conclude that the omission
                                                                   Court ignores). See BLACK'S LAW DICTIONARY 1224
of a “broad reference” somehow indicates which private
                                                                   (10th ed. 2014) (defining noscitur a sociis as “a canon of
entities the Legislature intended to include and which it
                                                                   construction holding that the meaning of an unclear word or
did not. And it is simply preposterous to conclude that the
                                                                   phrase, esp. one in a list, should be determined by the words
omission somehow indicates that they intended to include
                                                                   immediately surrounding it”).
“only those entities acting as the functional equivalent of the
government.” Ante at 59–60. We need not engage in such
                                                                   Even if the Court were applying the doctrine of noscitur a
sophistry, because the statute tells us which private entities
                                                                   sociis correctly here, that doctrine cannot be used to render
the Legislature intended to include as governmental bodies:
                                                                   express statutory language meaningless. “If ... the specific
those that are “supported in whole or in part by public funds.”
                                                                   terms exhaust the class of items enumerated in the statute,
TEX. GOV'T CODE § 552.003(1)(A)(xii). The Court finds
                                                                   it must be presumed that any generic term that follows
support for its judicially created functional equivalent test
                                                                   must refer to items transcending the class, since a contrary
only by manufacturing a “broad reference” to stack upon its
                                                                   construction ‘would contravene the more important rule of
misconstruction of the Act's “stated purpose.”
                                                                   construction that all words are to be given effect.’ ” Shipp v.
                                                                   State, 331 S.W.3d 433, 437 (Tex.Crim.App.2011) (quoting
9      This assertion is simply wrong. The very definition at      2A NORMAN J. SINGER & J.D. SHAMBIE SINGER,
       issue “broadly refers” to private entities by using a



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

SUTHERLAND STATUTORY CONSTRUCTION § 47:21                         interpretations of Public Information Act are persuasive but
at 390–91 (7th ed.2007)); see also Columbia Med. Ctr. of          not controlling). *84 But I would also clarify the Kneeland
Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.2008)        test to provide greater simplicity and guidance.
(“The Court must not interpret the statute in a manner that
renders any part of the statute meaningless or superfluous.”);
City of San Antonio, 111 S.W.3d at 29 (rejecting construction     1. Ambiguity
that would render some statutory language unnecessary and
                                                                  The Court and the parties agree that not every private
citing Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597,
                                                                  entity that contracts with the government and receives
601 (1915), for the proposition that “[i]t is an elementary
                                                                  payments of public funds is “supported ... by public funds.”
rule of construction that, when possible to do so, effect
                                                                  More specifically, they agree with the Attorneys General's
must be given to every sentence, clause, and word of a
                                                                  conclusion that an ordinary, arms-length transaction between
statute so that no part thereof be rendered superfluous or
                                                                  a private party and a governmental entity does not render
inoperative”). We must “read the statute contextually,” Office
                                                                  the private party a “governmental body” under the Act.
of Att'y Gen., 422 S.W.3d at 629, considering the relevant
                                                                  They agree that something more is required, but they dispute
language in the context of the statute as a whole, rather
                                                                  whether that something is present here. I too agree that
than as “isolated provisions,” TGS–NOPEC Geophysical, 340
                                                                  something more is required, but I conclude that the statute is
S.W.3d at 439, and endeavoring to “giv[e] effect to every
word, clause, and sentence,” In re Office of Att'y Gen., 422      ambiguous as to what that something is. 10
S.W.3d 623, 629 (Tex.2013), so that none of the language
is rendered superfluous, see Crosstex Energy Servs., L.P. v.      10     The Court argues that “governmental body” should not
Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex.2014). Because the              include every single vendor who sells a product or
Court's construction renders the phrase “in whole or in part             service to the government in a quid pro quo transaction,
” meaningless, I do not agree that definition (xii) includes             and cites authority from other jurisdictions to support
“organizations” and “corporations” only if they “function as             this contention. This is, of course, a straw man argument,
                                                                         as everyone in the case agrees that we cannot construe
quasi-public” entities. Ante at 62.
                                                                         the term that broadly. But merely because one extreme
                                                                         construction is available that would lead to an (arguably)
                                                                         absurd result does not mean that every less extreme
B. A More Accurate Interpretation
                                                                         construction within the range from narrowest to broadest
If a statute's words are susceptible to two or more                      possible constructions is unreasonable. Moreover, no one
reasonable interpretations, and we “cannot discern legislative           argues that the Partnership is merely an ordinary vendor
                                                                         under the contracts at issue here.
intent in the language of the statute itself,” the statute
is ambiguous, and we may rely on applicable canons of             The phrase “supported by” can have multiple common,
statutory construction. Tex. Lottery Comm'n v. First State        ordinary meanings, including:
Bank of DeQueen, 325 S.W.3d 628, 639 (Tex.2010). I would
conclude that the words “supported by” are ambiguous in             1. To carry the weight of, exp. from below.
this context, and would thus grant deference to the Attorneys
                                                                    2. To maintain in position so as to keep from falling,
General's long-standing construction of the Act's definition
                                                                       sinking, or slipping.
of a “governmental body.” See Combs v. Health Care
Servs. Corp., 401 S.W.3d 623, 629–30 (Tex.2013) (stating            3. To be able to bear: WITHSTAND.
that we grant deference to construction of agency that is
charged with enforcement of statute if statute is ambiguous,        4. To keep from failing or yielding during stress.
agency interpretation results from formal proceedings, and
                                                                    5. To provide for, by supplying with money or necessities.
interpretation is reasonable). Though not controlling, I would
                                                                       <support a large family>
consider the Attorney General constructions to be persuasive,
particularly in light of the responsibility the Legislature has     6. To furnish corroborating evidence for <support a
given the Attorney General for “interpreting” and promoting           witness's testimony>
uniformity in the application of the Act. See TEX. GOV'T
CODE § 552.011; see also City of Dall. v. Abbott, 304 S.W.3d        7. To aid the cause of by approving, favoring, or advocating
380, 384 (Tex.2010) (observing that Attorneys General's                <support for a political candidate>


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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

                                                                     precedents—and specifically Attorney General decisions and
  8. To endure: tolerate.
                                                                     the Kneeland test—or further guidance. 11
  9. a. To act (a part or role). b. To act in a secondary or
     subordinate role to (a leading performer).                      11     A statute is ambiguous if two or more plausible
                                                                            constructions are reasonable. Tex. Lottery Comm'n,
WEBSTER'S II NEW COLLEGE DICTIONARY 1108                                    325 S.W.3d at 639. The Court finds the phrase
(1995).                                                                     “supported in whole or in part by public funds”
                                                                            unambiguous, although it suggests that two of the
I agree with the Court that most of these definitions do                    dictionary definitions (“sustenance” and “maintenance”)
not apply in this statutory context, which limits “support”                 are “remotely possible.” Ante at ––––. The Court pursues
to a function that can be performed by money. See TGS–                      a backwards approach to the ambiguity analysis: it relies
NOPEC Geophysical, 340 S.W.3d at 441 (using statutory                       on context, purpose, and canons of construction first to
context to eliminate inapplicable meanings of a word in                     exclude every possible meaning of the word “supported”
                                                                            except two, then to exclude all but the most narrow
the statute). An ordinary reader could construe some of the
                                                                            of those two “possible” definitions, and then declares
broader definitions to include financial “support”: e.g., public
                                                                            that the term is “unambiguous” because there's only
funds could “carry the [financial] weight of” an entity. See
                                                                            one “reasonable” definition.” I find the term ambiguous
WEBSTER'S II NEW COLLEGE DICTIONARY at 1108.                                because, even in context and considering the statute's
In context, the most relatable definition is “[t]o provide for,             purpose, it is susceptible to more than one reasonable
by supplying with money or necessities.” Id. The Partnership                meaning, and I thus turn to canons of construction and
relies on this common meaning and argues that, just as a                    persuasive authorities for assistance in determining what
person “pays” an employee but “supports” a family member,                   the statute's actual language must mean.
the City “paid” rather than “supported” the Partnership. But
even this definition of “support” does not resolve the statute's     2. A Clarified Kneeland Test
ambiguity because the statute requires only that the entity be
supported “in whole or in part ” by public funds. TEX. GOV'T         Although this Court has not previously construed the Act's
CODE § 552.003(1)(A)(xii) (emphasis added).                          “supported by” language, the Fifth Circuit has in Kneeland,
                                                                     and Attorneys General have since consistently relied on the
As the Court notes, in the broadest sense, virtually any income      Kneeland test as the governing standard. The Partnership
from public funds could reasonably be considered to *85              urges us to reject the Kneeland test, asserting that it “has no
“provide for” the Partnership “in part” by supplying it with         basis in the statutory text” and leaves too much uncertainty
money, even if the City pays the money in exchange for               in the law. The Attorney General counters that the Kneeland
specific goods or services rendered. Ante at 84; see also            test “satisfies the legislature's intent[ ] to shed light on the
Tex. Ass'n of Appraisal Dists., Inc. v. Hart, 382 S.W.3d 587,        affairs of government” and “provides a workable framework
591–92 (Tex.App.–Austin 2012, no pet.) (observing that the           for determining whether an entity is a governmental body
dictionary definitions of “support” are “so broad and varied         under the [Act] because it treats entities functioning as
that any private entity that receives any public funds can           governmental bodies as such while eliminating vendors
be said to be, at least in part, ‘supported’ by those public         providing goods and services through arms-length contracts
funds,” yet all authorities have agreed that “simply receiving       from the definition.”
public funds does not make a private entity a ‘governmental
body’ under the [Act]”). The same problem results from the           I would conclude that the Kneeland test and its related
Court's definition of “supported” to mean “to provide a basis        precedent offer persuasive, though not controlling, legal
for the existence or subsistence of.” Ante at 59. At least “in       authority. See Christus Health Gulf Coast v. Aetna, Inc.,
part,” the City's payments for chamber-of-commerce services          237 S.W.3d 338, 343 & n.8 (Tex.2007) (noting that Fifth
provide a reason for the Partnership's existence and enable          Circuit precedent is persuasive but not binding on this Court)
it to “pursue its mission,” and the City's payments for those        (citing Penrod Drilling Corp. v. Williams, 868 S.W.2d 294,
services constitute at least a “part” of the revenue that sustains   296 (Tex.1993)). The test is founded on deference to the
the Partnership. See ante at 84. I would conclude that the           Attorneys General's interpretations of the Act, which are
Act's reference to entities that are “supported in whole or in       likewise persuasive but not controlling. See City of Dall.,
part by public funds” is ambiguous, and thus turn to existing        304 S.W.3d at 384. The Court complains that the Kneeland



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

test has a “questionable foundation,” noting that even the        uses that term. Thus, a private entity that receives public
Kneeland court acknowledged that its explanation of its           funds in exchange for assuming an “obligation to provide
holding was “a mite uncertain.” Ante at 65 (quoting Kneeland,     a measurable amount of service in exchange for a certain
850 F.2d at 224). But as *86 the Court notes, it is the           amount of money as would be expected in a typical arms-
“direction given” in Kneeland that the court described as         length contract for services between a vendor and purchaser”
“uncertain,” not the “foundation” on which the court relied.      is not “supported by” those public funds, and is not a
Although the court acknowledged that its description of the       governmental body under the Act. CareFlite v. Rural Hill
test was less than clear, “[o]ne may have no quarrel with the     Emergency Med. Servs., Inc., 418 S.W.3d 132, 141–42
formulae” it adopted. Kneeland, 850 F.2d at 228. I would take     (Tex.App.–Eastland 2012, no pet.) (holding that medical
this opportunity to clarify the Kneeland test by articulating     service provider was not a governmental body); see also
three basic requirements for determining whether a private        Hart, 382 S.W.3d at 595 (holding that association of appraisal
entity that provides services to or for the government and is     districts was not a governmental body).
paid with public funds is “supported in whole or part by public
funds” and is thus a governmental body under the Act.             A second requirement for a private entity to be “supported ...
                                                                  by public funds,” then, should be that the private entity must
                                                                  receive public funds not as compensation or consideration
                                                                  paid in exchange for “specific goods” or “specific measurable
                a. Receipt of Public Funds
                                                                  services,” but as a general or unrestricted payment provided
First, to be “supported by” public funds, a private entity must   to subsidize or underwrite the private entity's activities.
at least “receive” public funds, so an entity that does not       See Tex. Att'y Gen. Op. No. GA–666; compare Tex.
receive public funds is not a governmental body under this        Att'y Gen. ORD–228 (concluding that commission was
provision. Thus, while the Attorney General was cognizant         governmental body because it received public funds “used
in JM–821 that the role of a volunteer fire department is one     for [its] general support”); Tex. Att'y Gen. ORD–302
“traditionally provided by governmental bodies,” this fact,       (concluding that promoter of manufacturing and industrial
standing alone, is not enough. See Tex. Att'y Gen. Op. No.        development was governmental body because it was *87
JM–821. Arguably, at least, the private high school in JM–        provided “unrestricted” grant of public funds); Tex. Att'y
154, the water supply corporation in JM–596, and the Fiesta       Gen. Op. No. JM–116 (concluding that athletic association
planning commission in ORD–569 also provided services             was governmental body because it was provided public funds
“traditionally provided by governmental bodies.” See Tex.         to be “used for [its] ‘general support ... rather than being
Att'y Gen. ORD–569; Tex. Att'y Gen. Op. Nos. JM–154,              attributable to specific payments for specific measurable
JM–596. But because they did not receive public funds, they       services” ”), with Tex. Att'y Gen. ORD–343 (concluding
were not governmental bodies under part (xii). See TEX.           that ambulance service provider was not governmental body
GOV'T CODE § 552.003(1)(A)(xii). As the Attorney General          because it was paid specific amounts to cover specific,
recognized, “[t]he threshold question is whether the [private     measurable services provided under service contract).
entity] receives any funds from the [public fisc].” Tex. Att'y
Gen. ORD–569; see also Tex. Att'y Gen. OR2013–09038               This requirement would most easily be met when a
(determining that El Paso Zoological Society that received no     governmental entity provides a “grant” to promote the
public funds was not a governmental body).                        private entity's activities, but it may also be met when the
                                                                  governmental entity “pays” the private entity to provide
                                                                  services to or for the governmental entity or its constituents.
                                                                  The terminology that the parties choose to use should not be
              b. Support, Not Consideration                       determinative. A key factor in the context of a service contract
                                                                  like those at issue here would be whether the relationship
Everyone agrees, however, that merely “receiving” public
                                                                  between the service provider and the governmental entity
funds does not equate to being “supported by” those funds.
                                                                  is the kind of “quid pro quo ” relationship common in the
Governmental entities regularly purchase a wide variety
                                                                  service industry, see Kneeland, 850 F.2d at 230, or whether
of goods and services from private vendors, including
                                                                  the relationship is something more akin to a governmental
everything from legal pads to legal services, and I agree
                                                                  body outsourcing governmental services to a private entity,
that such vendors are generally not “supported ... by public
                                                                  see Tex. Att'y Gen. ORD–228, ORD–302; see also Hart,
funds” as a result of such transactions, at least as the Act



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

382 S.W.3d at 595 (observing that association of appraisal          of entities that are supported “in part” by public funds, it is
districts did not perform services traditionally performed by       the nature of the public funds (as support or sustenance and
governmental bodies and instead provided services under             not as compensation or consideration), and not the amount or
conditions similar to what would be expected in typical arm's-      percentage of the public funds, that matters.
length transaction).

In this context, I note that the Attorney General's ruling
                                                                                   c. A Shared Common Purpose
here should have come as no surprise to the Partnership,
as Attorneys General have repeatedly concluded that                 Finally, to ensure that the funds are received as a general or
chambers of commerce, see Tex. Att'y Gen. Nos. ORD–621              unrestricted payment to subsidize or underwrite the private
(Arlington Chamber of Commerce), OR2001–4849 (Round                 entity's activities, a third requirement should be that the funds
Rock Chamber of Commerce), chambers-of-commerce-like                be intended to promote a purpose, interest, or mission that
entities, see Tex. Att'y Gen. ORD–228 (entity chartered to          the governmental and private entities share and would both
promote interest of Dallas–Fort Worth metropolitan area),           pursue even in the absence of their contractual relationship.
ORD–302 (entity promoting manufacturing and industrial              The mere existence of an “agency-type relationship” or
development around City of Bryan), and even the Partnership         a “common purpose or objective,” or even the fact that
itself, see Tex. Att'y Gen. OR2004–4221, are governmental           the service is one “traditionally provided by governmental
bodies under the Act. But these conclusions are based on a          bodies,” should not be sufficient by itself to meet this
“fact-specific” analysis of the contract and context of each        third requirement. See Tex. Att'y Gen. Op. No. GA–666;
case. See Kneeland, 850 F.2d at 228; see also CareFlite,
                                                                    Kneeland, 850 F.2d at 228–29. 12 It is not unusual for
418 S.W.3d at 138 (“The answer to the [governmental-body]
                                                                    an arms-length services vendor to take on an agency-type
inquiry depends upon the circumstances of each case.”). As
                                                                    role for its customer, or for a governmental agency to
the Attorney General has confirmed, a chamber of commerce
                                                                    enter into an arms-length contract for government services
that is not “supported in whole or in part by public funds” is
                                                                    that the agency itself traditionally provides, and contracting
not a governmental body under the Act. See Tex. Att'y Gen.
                                                                    parties will ordinarily share at least the common objective of
OR2015–05495 (2015) (finding Central Fort Bend Chamber
                                                                    effectuating the obligations and purposes of their contract. In
of Commerce is not governmental body because it only
                                                                    ORD–343, for example, the Amarillo Hospital District and its
received public funds as membership fees paid for specific
                                                                    ambulance service provider shared the common goal of the
measurable services).
                                                                    contract: providing the people of Amarillo with emergency
                                                                    transportation to local hospitals. See Tex. Att'y Gen. ORD–
With regard to this second requirement, I would not dictate
                                                                    343. But such relationships do not necessarily result in the
that the public funds equal a particular amount or percentage
                                                                    governmental body “supporting” the private entity.
of the entity's total revenue, nor would I mandate that the
entity require those funds for its existence or survival. The Act
                                                                    12      See also CareFlite, 418 S.W.3d at 142 (“[W]e have
defines “governmental body” to include “the part, section, or
                                                                            not found [ ] any authority, primary or persuasive,
portion” of an entity that is “supported in whole or in part
                                                                            that stands for the proposition that, if a private entity
by public funds.” TEX. GOV'T CODE § 552.003(1)(A)(xii).
                                                                            and a governmental body share a common purpose
Thus, public funds could make up only a small portion of
                                                                            or objective, the private entity is automatically a
an entity's total revenues and yet provide general support,                 governmental body for purposes of the [Act]. Neither
and even the sole support, for a particular part, section, or               are we aware of any like authority when an entity
portion of the entity, or support “in part” of the entity as                provides services traditionally provided by governmental
a whole. See Tex. Att'y Gen. ORD–602 (holding that city                     bodies.”).
provided general support to museum even though public
                                                                    Instead, I would hold that a supportive relationship exists
funds constituted only 15% of total revenue, but only portion
                                                                    when the parties share a true “identity of interests” that each
of museum that received “direct support” was a governmental
                                                                    of them has beyond any particular transaction or finite series
 *88 body). Under this construction of the Act, that part,
                                                                    of transactions between them. See Kneeland, 850 F.2d at
section, or portion of the entity is a governmental body under
                                                                    228–29 (“[T]here apparently is some common purpose or
the Act, even if the rest of the entity is not. See id. In short,
                                                                    objective between the association and the universities, or they
because the statute includes the “part, section, or portion”
                                                                    would not be drawn to each other, but there is no real identity


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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

of interest and neither may be considered the agent of the            In summary, then, I would clarify the Kneeland test and hold
other.”). The volunteer fire department in JM–821 provides            that a private entity (or a part, section, or portion thereof)
an example of this more extensive “identity of interests”             is “supported in whole or in part by public funds,” and is
relationship. See Tex. Att'y Gen. Op. No. JM–821. There, the          thus a governmental body under the Public Information Act,
private entity and the governmental entity each independently         if (1) the private entity receives public funds; (2) it does so
had the purpose of protecting citizens and property from fires        not as compensation or consideration made in exchange for
and other hazards, and the governmental entity promoted the           “specific goods” or “specific measurable services,” but as
private entity's pursuit of that purpose by providing “general        a general or unrestricted payment provided to subsidize or
support.” See id.                                                     underwrite the private entity's activities; and (3) the funds
                                                                      provided are intended to promote a purpose, interest, or
I would thus distinguish between (1) a situation in which             mission that the governmental and private entities share and
a private entity contractually undertakes a governmental              would each pursue even in the absence of their contractual
entity's objectives because the governmental entity agrees to         relationship.
pay for those services, and (2) a situation in which a private
entity and a governmental entity that each independently have
the same purpose or interest, and thus an “identity of interest,”
                                                                                                     III.
contractually *89 agree to pursue that interest in cooperation
and using public funding. See Kneeland, 850 F.2d at 228–29.
For example, when a governmental entity hires a law firm to                          Application to the Partnership
represent it in litigation, the firm and the government share
                                                                      The Partnership, which undisputedly received public funds,
interests and objectives specific to the firm's representation
                                                                      asserts that its agreements with the City were arm's-length,
of that entity, but they do not necessarily have an “identity of
                                                                      quid pro quo contracts that only obligated it to perform
interests.” Although both the firm and the client may desire
                                                                      specific and measurable services. The Attorney General
and jointly pursue the same outcome from the representation,
                                                                      disagrees, contending that the Partnership was “paid a certain
the firm's interest in achieving that outcome is transaction
                                                                      amount of money on a quarterly basis to accomplish a
specific: the law firm takes on that goal because the client
                                                                      broad range of goals designed to promote the City.” The
pays it to do so, and but for the client-attorney relationship,
                                                                      Court agrees with the Partnership. Under the facts of this
the law firm generally has no stake in the outcome of the
                                                                      record, I would conclude that the Partnership meets all three
litigation. 13
                                                                      requirements for being “supported ... by public funds.”

13      Contrary to the Court's concern, this distinction would
        apply as effectively when the government contracts with       A. Payments to Subsidize the Partnership's Activities
        a private firm to “provide more enduring and wide-
        ranging counsel” as it would when it hires a firm to          The parties do not dispute, and I agree, that some of
        handle a specific matter. See ante at 66. In either case,     the provisions in the Partnership's contracts with the City
        the third requirement (common purpose) typically would        imposed specific and definite obligations on the Partnership
        not be met because it is not part of the law firm's mission   to provide a measurable amount of service. The court of
        or purpose to achieve the specific objectives that the        appeals also agreed, but found that the Partnership's “major
        government hires it to achieve, other than to fulfill its     obligations under the contract are not specific, definite, or tied
        obligation to its client. But if the government paid funds    to a measurable amount of service for a certain amount of
        to a special interest firm whose mission as a firm was to     money.” 407 S.W.3d at 784. The court *90 provided these
        protect the environment, or promote a pro-life agenda,
                                                                      examples of the Partnership's indefinite obligations to:
        or increase health care for children, for example, this
        third requirement might be satisfied if the purpose of the      • [i]dentify new business opportunities, secure economic
        government's payment was to “support” the firm's efforts           incentives and increase outreach and recruitment
        to accomplish that mission. If the second requirement
                                                                           activities to the region's targeted key industries to
        were also satisfied (i.e., the government paid the funds to
                                                                           strengthen the City of Houston as a competitive place to
        subsidize or underwrite the firm's efforts, rather than as
                                                                           do business;
        consideration for specific, measurable services), the firm
        would be a governmental body under the Act.



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

                                                                  perform its obligations “in exchange for a certain amount
  • partner with the airport system to recruit, relocate, and     of money,” as the Partnership is paid a set amount on
     expand business which supports the master plan, and to       a quarterly basis “regardless of whether or how much it
     identify business incentives available in both public and    does in furtherance of the contract's goals.” According to
     private sectors;                                             the Partnership, “this observation fails to acknowledge or
                                                                  appreciate that all payments under the contracts are made ‘in
  • make its research capabilities available to the City
                                                                  arrears and are contingent upon receipt and approval’ ” of the
    of Houston's convention and entertainment facilities
                                                                  Partnership's performance reports.
    department and its convention and visitor's bureau for
    marketing reports;
                                                                  I agree with the court of appeals that while some of the
  • support and coordinate with HAS to develop new                services the Partnership provides under the contracts are
    air routes, stimulate increased international trade and       specific and measurable, the major obligations are broad and
    business for Houston companies;                               open-ended. Although the performance reports may identify
                                                                  specific services that the Partnership performed in fulfilling
  • promote HAS stories in international markets and              those general promises, these after-the-fact reports of services
    highlight HAS efforts to provide airports allowance for       the Partnership decided to provide do not impose a *91
    expansion and ease of transportation;                         contractual obligation on the Partnership to provide those
                                                                  specific services. And although the contracts provide that the
  • “coordinate on matters of mutual interest” before the U.S.    City's quarterly payments to the Partnership are “contingent
     Congress, federal agencies, the Texas Legislature, and       upon receipt and approval by the Director of [the] written
     Texas agencies; and                                          progress reports in accordance with Article III(C),” that
                                                                  article merely authorizes the Director to require reports and
  • assist the City of Houston's mayor, should she ask for
                                                                  to determine their format and content; it does not authorize
     help, with “advancing various Economic Development
                                                                  the Director to dictate what services must be provided or
     and Marketing Initiatives.”
                                                                  included in the report or otherwise narrow the Partnership's
Id. at 784. In light of these provisions, the court of appeals    broad discretion to decide the types and amounts of services
concluded that it could not “say that overall the contract here   to provide. Finally, the fact that it might be difficult or
imposes specific and definite obligations on [the Partnership]    impossible for the contracts to provide greater detail about
to provide a measurable amount of services to the City of         some of the “intangible deliverables” does not weigh in favor
Houston in exchange for a certain amount of money, as would       of treating those provisions as if they called for “specific,
be expected in a typical arms-length contract for services        measurable services” when they do not. In ORD–602, the
between a vendor and purchaser.” Id.                              Attorney General recognized that the “highly specialized,
                                                                  unique services” the museum provided to the City of Dallas
The Partnership contends, and the Court apparently agrees,        could not be “known, specific, or measurable,” but the
that its contractually mandated performance reports provide       Attorney General still concluded that the museum was, in
the missing specifics for the broader obligations on which        part, a governmental body under the Act. See Tex. Att'y Gen.
the court of appeals relied. The Partnership also asserts that    ORD–602 (1992).
some of its contractual obligations are necessarily vague
because “in the context of intangible deliverables it would be    As the court of appeals pointed out, the contracts at
nearly impossible to provide greater details.” For example,       issue do not tie the City's payments to the Partnership to
the contracts require the Partnership to “make its research       discrete services or measurable amounts of service. Instead,
capabilities available on request to” the City of Houston's       the City paid the Partnership a flat fee of $196,250 per
convention and entertainment facilities department and its        quarter, regardless of whether, or how, or how extensively
convention and visitor's bureau “to facilitate the creation       the Partnership made efforts to “identify new business
of professional, sophisticated marketing reports,” but the        opportunities, secure economic incentives, and increase
City cannot predict all of the groups that might approach         outreach and recruitment activities to the region's targeted
it during the course of a year with an interest in the            key industries to strengthen Houston as a competitive place
convention center. The Partnership also takes issue with the      to do business.” The absence of an identifiable link between
court of appeals' observation that the Partnership does not       the services provided and the payment due, when considered



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Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

in conjunction with the lack of specificity and measurability        the absence of their contractual relationship. The evidence
in many of the contract's service requirements, demonstrates         here readily establishes that this requirement is met.
that the City paid the Partnership public funds to subsidize,        Independent from any contract with the City, the Partnership
underwrite, and support the Partnership's activities.                exists to promote job creation, increased trade, and capital
                                                                     investment in the greater Houston area. As the Court
It is true that public funds make up only a small “part” of the      agrees, even without the City's contract, the Partnership
Partnership's support. But when an entity, or “part, section,        “could and would continue to promote the greater Houston
or portion” of an entity, receives public funds for its general      economy to advance its own interests and those of its
support, the entity has broad discretion to use those funds          more than 2,000 non-government members.” Ante at 61.
as it sees fit to accomplish its goals, and the entity shares        The City contracted with the Partnership because the City
those goals with a public entity that would otherwise use the        independently shares those same interests. The City did not
funds to accomplish those goals itself, the entity, or that “part,   pay the Partnership to provide services merely to promote
section, or portion” of the entity, is “supported in whole or in     the City's individual objectives, but to promote objectives
part by public funds.” This does not mean that the public has        that the City and the Partnership share. In fact, the contracts
a right to know how the Partnership spends all of its funds,         required that the scope of the Partnership's services “support
but the Partnership has made a tactical decision here not to         the goals, visions, and objectives outlined in the Partnership's
provide information about where the public funds go within           Strategic Plan.” (Emphasis added.) The interest the City
the Partnership or how the public funds are spent, so that           and Partnership share does not arise solely out of the
we could limit its duty to produce records under the Act to          parties' contractual relationship—both parties independently
“records concerning its operations that are directly supported       share these objectives. The City has an inherent motive to
by governmental bodies,” as the Attorney General has done            promote its own financial interests, and promotion of the
for the Partnership in the past. See Tex. Att'y Gen. OR2004–         City's economic development was a primary focus of the
4221 (emphasis added).                                               Partnership's purpose.

Finally, as noted, the 2008 services agreement included              Under these circumstances, I would hold that the Partnership
language specifying that the City's funds were “solely               was “supported in whole or in part by public funds” so
for services rendered under this Agreement and are not               as to fall within the definition of a “governmental body”
intended to support [the Partnership] in any of its activities       under the Public Information Act. See TEX. GOV'T CODE
not specifically set forth in this Agreement.” But the               § 552.003(1)(A)(xii).
determination of this issue must depend on the actual nature
of the services and payment obligations under the contract.
The 2008 contract's conclusory statements that the contract
                                                                                                   IV.
does not render the Partnership a governmental body and that
the contract payments are not for general support do not make
it so. Just as a governmental *92 body cannot avoid the                                      Policymaking
Act's requirements by promulgating rules, see Indus. Found.
                                                                     Although the Court acknowledges the Act's instruction that
of the S., 540 S.W.2d at 677, it cannot do so by contractually
                                                                     we construe it liberally in favor of a request for information,
agreeing that the Act does not apply. Otherwise, every entity
                                                                     see id. § 552.001(b), the Court chooses to adopt the most
contracting with the government would shield itself from
                                                                     narrow construction of “supported” possible, because a
the Act simply by stating in the contract that it is not a
                                                                     broader construction would permit “public intrusion into the
governmental body. In light of the broad, open-ended services
                                                                     private affairs of non-governmental entities,” ante at 62,
the Partnership agreed to perform under these contracts, I
                                                                     “pry open the sensitive records of private entities,” ante at
would conclude that the second requirement is met.
                                                                     62 n.12, and subject the Partnership to “invasive disclosure
                                                                     requirements,” ante at 67. Even if we could construe the Act
B. Identity of Interests                                             according to our preferred results rather than the text of the
                                                                     statute (which we cannot, or at least, should not), I find the
I now consider whether the City's funds were intended                Court's concerns to be not nearly as troubling as the Court
to promote a purpose, interest, or mission that the City             suggests.
and the Partnership share and would each pursue even in


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              32
Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

What the Court fails to acknowledge is that the Act protects               holding, if allowed to stand, will be “catastrophic” for
the Partnership's “sensitive records,” but the Partnership                 chambers of commerce in Texas and will render them
elected not to seek that protection. The Act expressly excepts             “wholly unable to function.”
from disclosure all information that is “confidential by law,      I am not convinced that the effect of our determination
either constitutional, statutory, or by judicial decision.” TEX.   would or must be as drastic as either party, or the Court,
GOV'T CODE § 552.101. Even if the information is not               suggests. Although the Court concludes that the Partnership
confidential by law, the Act still excepts it from disclosure      is not a governmental body, the Act still empowers the
if, for example, it constitutes the Partnership's commercial       public to require the City to disclose all “information that is
or financial information *93 and (as the Court assumes)            written, produced, collected, assembled, or maintained” by
its disclosure would cause the Partnership “substantial            or for the City “under a law or ordinance or in connection
competitive harm.” Id. § 552.110(b). In fact, as the Court         with the transaction of official business.” TEX. GOV'T
recently held, the Act excepts the information if its release      CODE § 552.002(a)(1) (defining “public information”). This
would even just “give advantage to a competitor.” See Boeing       extends to not only the City's service agreements with
Co. v. Paxton, No. 12–1007, ––– S.W.3d ––––, –––– (Tex.            the Partnership and all reports and other information the
June 19, 2015) (construing TEX. GOV'T CODE § 552.104).             Partnership provided to the City under those contracts, but
And particularly apropos to the Partnership's activities,          also all information the Partnership collects, assembles, or
the Act specifically excepts certain “information [that]           maintains for the City “in connection with the transaction of
relates to economic development negotiations involving             official business,” if the City “owns,” “has a right of access
a governmental body and a business prospect that the               to,” or “spends or contributes public money for the purpose
governmental body seeks to have locate, stay, or expand in         of writing, producing, collecting, assembling, or maintaining
or near the territory of the governmental body.” TEX. GOV'T        the information.” Id. § 552.002(a). Even if the requested
CODE § 552.131(a). The Partnership did not assert any of           information is not in the City's actual possession, the Act still
these exceptions in this appeal. In fact, it did not assert any    provides broad access to the Partnership's information related
exceptions at all, even though it has successfully asserted        to “the transaction of official business.” Id.
exceptions in the past. See Tex. Att'y Gen. OR2004–4221.
Nor did it ever contend that only a “part, section, or portion”    Conversely, if the Court concluded, as I do, that the
of the Partnership is supported by public funds, even though       Partnership is a governmental body, the Partnership could
it successfully made that assertion in the past as well. See id.   still protect its confidential and commercially sensitive *94
                                                                   information by relying on the Act's numerous exceptions. In
The Partnership contends that the court of appeals' decision       addition, the Partnership could assert (as it has previously
represents a “vast overexpansion of the Public Information         asserted), that only a particular “part, section, or portion” of
Act to reach private business information that the public has      the Partnership is supported in whole or in part by public
no inherent or legitimate right to know.” In response, the         funds, and only that “part, section, or portion” is required
Attorney General asserts that the Partnership's construction       to disclose information in response to a public information
of the statute would permit governmental bodies to evade           request. See id. § 552.003(1)(A)(xii); see also Tex. Att'y
public scrutiny by contracting with private entities to carry      Gen. OR2004–4221 (concluding that “the [Partnership's]
out government business. “If governmental bodies can               records concerning its operations that are directly supported
shield information from public scrutiny by outsourcing             by governmental bodies are subject to the Act as public
their business to private companies,” the Attorney General         information”) (emphasis added). In its appeal to this Court,
contends, “the purpose of the [Act] is frustrated.” In short,      however, the Partnership does not assert any exceptions,
each party warns that the other's proposed construction            does not contend that only a particular “part, section, or
will have dire consequences, either destroying private             portion” of the Partnership was supported by public funds,
entities' ability to keep their private information private        and has made no other effort to protect the information in its
or undermining the people's right to know what their               check registers, other than to claim it is not a governmental
government is doing. The Partnership asserts, “The stakes are      body. It is a risky litigation strategy, and the Court should
tremendous.” 14                                                    not let it motivate us to misinterpret the Act for fear that
                                                                   the Partnership's confidential financial information would
14                                                                 otherwise be disclosed.
       We have also received amicus briefs from several
       chambers of commerce arguing that the court of appeals'



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              33
Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (2015)
58 Tex. Sup. Ct. J. 1362

In any event, regardless of whether the effects will be as
drastic as the Court, the Partnership, or the Attorney General                                          V.
suggest, our job is to interpret and apply the statute as written,
not to rewrite it to achieve the policy outcomes they or we
                                                                                                   Conclusion
may prefer. See In re Tex. Dep't of Family & Protective Servs.,
210 S.W.3d 609, 614 (Tex.2006) (“It is not the Court's task to           I would hold that the Greater Houston Partnership was
choose between competing policies addressed by legislative               supported in whole or in part by public funds and would
drafting. We apply the mandates in the statute as written.”)             thus agree with the Attorney General, the trial court, and the
(citation omitted). 15                                                   court of appeals that the Partnership is a governmental body
                                                                         for purposes of Jenkins's public information requests. The
15      See also F.F.P. Operating Partners, L.P. v. Duenez, 237          Partnership has not argued that only a particular “part, section,
        S.W.3d 680, 690 (Tex.2007) (“[W]e do not pick and                or portion” of the Partnership received public funds, or that
        choose among policy options on which the Legislature             any of the information at issue falls within one of the Act's
        has spoken. ‘Our role ... is not to second-guess the             exceptions to required disclosure. I would therefore affirm
        policy choices that inform our statutes or to weigh              the court of appeals' judgment requiring the Partnership to
        the effectiveness of their results; rather, our task is to       disclose its 2007 and 2008 check registers pursuant to the
        interpret those statutes in a manner that effectuates the        Public Information Act.
        Legislature's intent.’ ”) (quoting McIntyre v. Ramirez,
        109 S.W.3d 741, 748 (Tex.2003)) (alteration in F.F.P.
        Operating Partners, 237 S.W.3d at 690).                          All Citations

                                                                         468 S.W.3d 51, 58 Tex. Sup. Ct. J. 1362

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                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  34
John v. State, 826 S.W.2d 138 (1992)




                                                                [2]   Eminent Domain
     KeyCite Yellow Flag - Negative Treatment                             Strict Compliance with Statutory
Declined to Extend by State v. Titan Land Development Inc.,           Requirements
 Tex.App.-Hous. (1 Dist.), June 11, 2015
                                                                      148 Eminent Domain
                      826 S.W.2d 138                                  148III Proceedings to Take Property and Assess
                  Supreme Court of Texas.                             Compensation
                                                                      148k167 Statutory Provisions and Remedies
         Paul F. JOHN, Lillie John and John's                         148k167(4) Strict Compliance with Statutory
                                                                      Requirements
        Welding & Construction, Inc., Petitioners,
                                                                      Procedures set forth in condemnation statute
                          v.
                                                                      must be strictly followed and its protections
           The STATE of Texas, Respondent.
                                                                      liberally construed for benefit of landowner.
                                                                      V.T.C.A., Property Code § 21.049.
            No. D–1557. | Feb. 26, 1992. |
            Rehearing Overruled April 22, 1992.                       15 Cases that cite this headnote
Landowners appeal from judgment of the District Court No.
274, Guadalupe County, Fred Moore, J., entered in eminent       [3]   Eminent Domain
domain proceeding. The San Antonio Court of Appeals                      Filing Report and Notice
affirmed, and landowners applied for writ of error. The               148 Eminent Domain
Supreme Court held that landowner's time to object to special         148III Proceedings to Take Property and Assess
commissioner's award in condemnation proceeding is tolled             Compensation
until clerk sends notice to landowner pursuant to statute             148k225 Assessment by Commissioners,
requiring clerk to send notice by next working day indicating         Appraisers, or Viewers
condemnation award.                                                   148k234 Report and Findings or Award
                                                                      148k234(5) Filing Report and Notice
Reversed and remanded.                                                Statute requiring clerk of court to send
                                                                      notification of special commissioner's decision
                                                                      in condemnation proceeding no later than
                                                                      next working day after day of decision is
 West Headnotes (6)                                                   mandatory because it is part of the statutory
                                                                      scheme authorizing eminent domain actions and
                                                                      is designed to protect landowner. V.T.C.A.,
 [1]     Eminent Domain
                                                                      Property Code § 21.049.
            Objections and Exceptions
          148 Eminent Domain                                          12 Cases that cite this headnote
          148III Proceedings to Take Property and Assess
          Compensation
          148k225 Assessment by Commissioners,                  [4]   Notice
          Appraisers, or Viewers                                           Requisites and Sufficiency of Formal
          148k235 Objections and Exceptions                           Notice in General
         Landowner's time to object to special                        277 Notice
         commissioner's award in condemnation                         277k9 Requisites and Sufficiency of Formal
         proceeding is tolled until clerk sends notice to             Notice in General
         landowner pursuant to statute requiring clerk                When statute provides method by which notice
         to send notice by next working day indicating                shall be given in particular instance, notice
         condemnation award. V.T.C.A., Property Code                  provision must be followed with reasonable
         § 21.049.                                                    strictness.

         5 Cases that cite this headnote                              4 Cases that cite this headnote




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    1
John v. State, 826 S.W.2d 138 (1992)




 [5]    Action                                               Opinion
             Change of Character or Form
                                                             PER CURIAM.
        Eminent Domain
           Objections and Exceptions                          [1] This is a condemnation case. At issue is whether
        13 Action                                            landowners are entitled to notice providing an opportunity
        13II Nature and Form                                 to timely object after a condemnation award is filed with
        13k36 Change of Character or Form                    the trial court. The court of appeals held that Paul F.
        148 Eminent Domain                                   John, Lillie John and John's Welding & Construction Inc.
        148III Proceedings to Take Property and Assess
                                                             (collectively “the Johns”) did not file timely objections to the
        Compensation
                                                             condemnation award because the timetable for objecting to
        148k225 Assessment by Commissioners,
                                                             the award starts with the filing of the award, not the sending
        Appraisers, or Viewers
        148k235 Objections and Exceptions
                                                             or receiving of notice. A majority of this court holds that, in
        Filing timely objections in condemnation             a condemnation proceeding, the parties' time to object to the
        proceeding invokes jurisdiction of trial court       special commissioners' award is tolled until the clerk sends
        and transforms administrative proceeding into        the required notice pursuant to section 21.049 of the Texas
        pending cause. V.T.C.A., Property Code §             Property Code.
        21.049.
                                                             The state commenced an eminent domain action to
        4 Cases that cite this headnote                      condemn the property owned by the Johns. At the special
                                                             commissioners' hearing, on March 28, 1990, the Johns
                                                             received an award for the value of their property. On April
 [6]    Eminent Domain
                                                             2, 1990, the special commissioners' award was filed with the
           Objections and Exceptions
                                                             trial court. On April 3, 1990, the clerk should have sent notice
        148 Eminent Domain                                   to the Johns informing them that the commissioners' award
        148III Proceedings to Take Property and Assess
                                                             had been filed with the trial court. See Tex. Prop.Code §
        Compensation
                                                             21.049 (providing that the clerk shall send notice to the parties
        148k225 Assessment by Commissioners,
                                                             in the proceeding, by the next working day, indicating that the
        Appraisers, or Viewers
        148k235 Objections and Exceptions                    condemnation award had been filed with the trial court). On
        If objections are not timely filed in condemnation   April 25, 1990, the clerk finally sent the required notice to the
        proceeding, trial court can only perform its         Johns. Two days later, on April 27, 1990, the Johns filed their
        ministerial function and render judgment based       objections to the award and demanded a trial to determine the
        on special commissioner's award. V.T.C.A.,           value of the property.
        Property Code § 21.049.
                                                             The trial court held that it did not have jurisdiction to consider
        11 Cases that cite this headnote                     the merits of the case without timely objections and could
                                                             only perform its ministerial function of entering judgment
                                                             based upon the commissioners' award. See Tex. Prop.Code
                                                             § 21.018(a) (providing that objections to the condemnation
Attorneys and Law Firms                                      award must be filed on or before the Monday next following
                                                             the twentieth day after the day the commissioners file their
 *139 Bennie Bock, II, New Braunfels, Laura Cavaretta, and   findings with the court). The court of appeals affirmed the
Paul M. Green, San Antonio, for petitioners.                 judgment of the trial court on the basis that the Johns did
                                                             not file timely objections. To support that result, the court of
George R. Jennings, and Mark Heidenheimer, Austin, for       appeals compared section 21.049 of the Texas Property Code
respondent.                                                  to rule 239a of the Texas Rules of Civil Procedure which
                                                             governs default judgments. 1 The notice requirement of rule
                                                             239a has been considered directory, rather than mandatory.
                                                             See Petro–Chemical Transport, Inc. v. Carroll, 514 S.W.2d


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
John v. State, 826 S.W.2d 138 (1992)


240, 244–45 (Tex.1974) (the clerk's failure to send required                    special commissioners] is filed, the
notice does not affect the *140 finality of the judgment                        clerk shall send notice of the decision
but such a failure may be a predicate for bill of review);                      by certified or registered United States
see also Bloom v. Bloom, 767 S.W.2d 463, 468 (Tex.App.                          mail, return receipt requested, to the
—San Antonio 1989, writ denied) (the clerk's failure to                         parties in the proceeding, or to their
provide the required notice, pursuant to rule 239a, does                        attorneys of record, at their addresses
not constitute reversible error). Thus, reasoning that section                  of record.
21.049 is likewise directory, the court of appeals held that the
clerk's failure to comply with the notice provision does not        Tex.Prop.Code § 21.049. In contrast to rule 239a, this section
toll the timetable for objecting to the commissioners' award.       must be construed as mandatory because it is part of the
                                                                    statutory scheme authorizing eminent domain actions and it
1                                                                   is designed to protect the landowner. Moreover, since the
       Rule 239a of the Texas Rules of Civil Procedure
                                                                    language of the statute is clear and unambiguous, it should be
       provides, in part, that “[i]mediately upon the signing of
                                                                    enforced as written, giving its terms their usual and ordinary
       the judgment, the clerk shall mail written notice thereof
       to the party against whom the judgment was rendered....”
                                                                    meaning, and without resorting to the rules of construction.
                                                                    See Balios v. Texas Dep't of Pub. Safety, 733 S.W.2d 308,
 [2] Contrary to the court of appeals' analysis, the notice
                                                                    310 (Tex.App.—Amarillo 1987, writ ref'd). 3 Therefore, in
requirements of section 21.049 of the Texas Property Code
                                                                    condemnation cases, the clerk must comply with the notice
and rule 239a of the Texas Rules of Civil Procedure are
                                                                    provisions.
not analogous. Default judgments are distinguishable for
two reasons. First, rule 239a specifically states that “failure
                                                                    3      The state argues that the notice provision of section
to comply with the provisions of the rule shall not affect
the finality of the judgment.” Tex.R.Civ.P. 239a. Thus,                    21.049 is directory rather than mandatory because
unlike section 21.049 of the Texas Property Code, the notice               Senator McFarland stated, during the floor debate on the
                                                                           revised property code, that this bill is “a nonsubstantive
requirement is directory by the express language of rule
                                                                           codification.” 2nd and 3rd Reading of Senate Bill 49
239a. 2 Second, in a condemnation action, the landowner                    on the Senate Floor, p. 2, 1. 23–24. In 1983, during
is given a single opportunity to recover damages for the                   the first called session, the Legislature amended art.
taking of his property by the state for the public benefit.                3265 § 5 to require notice to the parties, by the next
Coastal Indust. Water Auth. v. Celanese Corp. of Am., 592                  working day, indicating that the condemnation award
S.W.2d 597, 599 (Tex.1979). As a result, the procedures set                had been filed with the trial court. Act of June 19,
forth in the condemnation statute must be strictly followed                1983, H.B. No. 1118, § 5, 68th Legislature, 1st C.S.,
and its protections liberally construed for the benefit of the             ch. 838, 1983 Tex.Gen.Laws 4766. During the second
landowner. See Rotello v. Brazos County Water Control &                    call of the same session, the legislature incorporated
Improvement Dist., 574 S.W.2d 208, 212 (Tex.Civ.App.—                      this change into the Property Code. Act of 1984, S.B.
                                                                           49, § 1(d), 68th Legislature, 2nd C.S., ch. 18, 1984
Houston [1st Dist.] 1978, no writ). See also Coastal Indust.
                                                                           Tex.Gen.Laws 95 (codified as Tex.Prop.Code § 21.049.)
Water Auth., 592 S.W.2d at 599; Walling v. State, 394 S.W.2d
                                                                           Thus, the substantive change occurred prior to the 1984
38, 40 (Tex.Civ.App.—Waco 1965, writ ref'd n.r.e.).
                                                                           codification.
                                                                              Furthermore, the express language of the statute
2      When a defaulting party does not receive any actual or                 states that the clerk “shall” send notice to the
       official notice, rule 306a(4) of the Texas Rules of Civil              parties in the condemnation proceeding. Shall “is an
       Procedure provides a limited extension of time before                  imperative term, by ordinary meaning, and requires
       the judgment becomes final and the trial court loses its               the performance of the act to be performed. Thus,
       plenary power. After that limited extension of time has                it should be treated as a mandatory term, unless it
       lapsed, the clerk's failure to send notice will not affect             is apparent that the legislature intended otherwise.”
       the finality of the judgment. Tex.R.Civ.P. 239a.                       Balios v. Texas Dep't of Pub. Safety, 733 S.W.2d 308,
                                                                              310 (Tex.App.—Amarillo 1987, writ ref'd) (citations
 [3] One such procedure is section 21.049 of the Texas
                                                                              omitted).
Property Code, which mandates that:
                                                                     [4] [5] [6] In light of section 21.049 of the Texas Property
             [N]ot later than the next working day                  Code, the court of appeals *141 incorrectly applied Dickey
             after the day the decision [by the                     v. City of Houston, 501 S.W.2d 293 (Tex.1973) which held


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     3
John v. State, 826 S.W.2d 138 (1992)


                                                                              Dist.] 1978, no writ). By sending notice to the Johns after
that a landowner who received notice of the condemnation
                                                                              their time to object had lapsed, the clerk failed to follow
was charged with the duty to “take cognizance” of subsequent
                                                                              the notice requirement with reasonable strictness.
acts of the commissioners including making an award,
returning it to the trial court, and having the trial court           5       Filing timely objections invokes the jurisdiction of the
enter the judgment unless timely objections were filed. Id.                   trial court and transforms the administrative proceeding
at 294. After Dickey, the legislature passed this mandatory                   into a pending cause. Pearson v. State, 159 Tex. 66,
provision, Tex.Prop.Code § 21.049, which supplanted the                       315 S.W.2d 935, 937 (1958); see Seiler v. Intrastate
holding in Dickey and required the clerk to send notice to                    Gathering Corp., 730 S.W.2d 133, 137 (Tex.App.—San
                                                                              Antonio 1987, no writ). If objections are not filed timely,
the landowner, by the next working day, confirming that
                                                                              the trial court can only perform its ministerial function
the condemnation award had been filed with the trial court.
                                                                              and render judgment based upon the commissioner's
Thus, notice of the condemnation hearing is not sufficient
                                                                              award. See Pearson, 315 S.W.2d at 938. However, the
notice that the landowners' time to object to the condemnation
                                                                              clerk's failure to send notice tolls the landowner's time to
award has begun to run. In the case at bar, the clerk failed                  object. Therefore, in the case at bar, the trial court had
to notify the Johns that the special commissioners' award had                 jurisdiction to consider the merits of the case because the
been filed with the court until after the deadline to object                  Johns filed timely objections. Cf. Packer v. Fifth Court
had passed. 4 As a result, the Johns' time to object to the                   of Appeals, 764 S.W.2d 775 (Tex.1989).
special commissioners' award is tolled until the clerk sends          Accordingly, pursuant to Tex.R.App.P. 170, without hearing
the required notice pursuant to section 21.049 of the Texas           oral argument, a majority of this court grants the Johns'
Property Code. 5                                                      application for writ of error, reverses the judgment of the court
                                                                      of appeals, and remands the cause to the trial court for further
4                                                                     proceedings consistent with this opinion.
       When a statute provides the method by which notice shall
       be given in a particular instance, the notice provision
       must be followed with reasonable strictness. See Rotello
                                                                      All Citations
       v. Brazos County Water Control & Improvement Dist.,
       574 S.W.2d 208, 212 (Tex.Civ.App.—Houston [1st
                                                                      826 S.W.2d 138

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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                           4
Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013)


                                                                        148k235 Objections and exceptions
                                                                        Electric company's time to file objections
                     2013 WL 6672494
                                                                        to the special commissioners' damages award
       Only the Westlaw citation is currently available.
                                                                        to landowner in condemnation action was
          SEE TX R RAP RULE 47.2 FOR                                    tolled until the trial court clerk mailed the
    DESIGNATION AND SIGNING OF OPINIONS.                                notice of decision to company, as required by
                                                                        condemnation statute, and because the trial court
               MEMORANDUM OPINION                                       clerk never mailed the notice as required by
                Court of Appeals of Texas,                              statute, company's time to file objections to
                      San Antonio.                                      the commissioners' award was tolled. V.T.C.A.,
                                                                        Property Code § 21.049.
         ONCOR ELECTRIC DELIVERY
            COMPANY LLC, Appellant                                      Cases that cite this headnote
                       v.
  James Milton James Milton SCHUNKE, Appellee.                   [2]    Eminent Domain
                                                                           Filing report and notice
          No. 04–13–00067–CV.          |   Dec. 18, 2013.
                                                                        148 Eminent Domain
Synopsis                                                                148III Proceedings to Take Property and Assess
Background: Electric company filed a condemnation                       Compensation
                                                                        148k225 Assessment by Commissioners,
petition. Special commissioners awarded landowner
                                                                        Appraisers, or Viewers
$367,000.00 in damages for the condemnation of his
                                                                        148k234 Report and Findings or Award
land. Landowner filed a motion seeking judgment on the
                                                                        148k234(5) Filing report and notice
commissioners' award. The 35th Judicial District Court,
                                                                        Where attorney for electric company gave the
Mills County, Stephen Ellis, J., concluded that company's
                                                                        notice of special commissioners' decision to
objections to commissioners' award were untimely filed,
                                                                        the trial court clerk, who filed the notice and
granted landowner's motion, and rendered judgment on the
                                                                        handed company's attorney a file-stamped copy
commissioners' award. Company appealed.
                                                                        of the notice, the act of handing file-stamped
                                                                        copy of the notice of decision to one of
                                                                        company's attorneys did not satisfy the clerk's
[Holding:] The Court of Appeals, Karen Angelini, J.,                    mandatory duty to mail the notice to the parties or
held that company's time to file objections to the special              their attorneys pursuant to condemnation statute.
commissioners' damages award was tolled until the trial court           V.T.C.A., Property Code § 21.049.
clerk mailed the notice of decision to company, as required
by condemnation statute.                                                Cases that cite this headnote



Reversed and remanded.
                                                                From the 35th Judicial District Court, Mills County, Texas,
                                                                Trial Court No. 11–04–6278, Stephen Ellis, Judge.
 West Headnotes (2)                                             Attorneys and Law Firms

                                                                Joann N. Wilkins, Lance Cooper Travis, Burford & Ryburn,
 [1]       Eminent Domain
                                                                Dallas, TX, for Appellant.
              Objections and exceptions
           148 Eminent Domain                                   Luke Ellis, Jons, Marrs, Ellis, and Hodge, LLP, Austin, TX,
           148III Proceedings to Take Property and Assess       for Appellee.
           Compensation
           148k225 Assessment by Commissioners,                 Sitting: KAREN ANGELINI, Justice, MARIALYN
           Appraisers, or Viewers                               BARNARD, Justice, REBECA C. MARTINEZ, Justice.


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013)


                                                                     decision to Oncor's attorneys of record. Oncor filed objections
                                                                     to the commissioners' award on October 19, 2011.
               MEMORANDUM OPINION
                                                                     Thereafter, Schunke filed a motion seeking judgment on
Opinion by KAREN ANGELINI, Justice.                                  the commissioners' award. In the motion, Schunke argued
                                                                     the trial court was required to render judgment on the
 *1 Oncor Electric Company LLC appeals from a                        commissioners' award because Oncor failed to file its
judgment rendered on a special commissioners' award in               objections in a timely manner. According to Schunke, Oncor's
a condemnation case. We conclude the trial court erred               objections were due on October 17, 2011, which was the first
in rendering judgment on the commissioners' award. We
                                                                     Monday following the twentieth day after the commissioners'
therefore reverse and remand for further proceedings.                award was filed with the trial court clerk.

                                                                     The trial court held a hearing on Schunke's motion. At the
                       BACKGROUND                                    hearing, a trial court clerk testified that the notice of the
                                                                     commissioners' decision was not sent to Oncor in the manner
A condemnation action begins as an administrative                    specified by the property code. Nevertheless, Schunke argued
proceeding and, if necessary, may be converted to a judicial         that the clerk's failure to send the notice of decision to
proceeding. City of Tyler v. Beck, 196 S.W.3d 784, 786               Oncor in the manner specified by the property code did not
(Tex.2006). To begin a condemnation action, a condemning             toll Oncor's time for filing objections because the relevant
entity files a petition in the appropriate trial court. Id.; State   property code provisions were designed to protect landowners
v. Garland, 963 S.W.2d 95, 97 (Tex.App.-Austin 1998, pet.            rather than condemning entities. Schunke further argued that
denied). The trial court then appoints special commissioners,        Oncor had actual notice of the filing of the notice of decision.
who conduct a hearing and determine just compensation.               In response, Oncor argued its objections were not untimely
Beck, 196 S.W.3d at 786; Garland, 963 S.W.2d at 97.                  because the property code required the clerk to mail the notice
Any party to a condemnation action may object to the                 of decision to the parties or their attorneys of record and the
commissioners' award by filing written objections with the           clerk failed to do so. Furthermore, Oncor claimed that it relied
court. Beck, 196 S.W.3d at 786; Garland, 963 S.W.2d at               on the law stating that the time for filing objections was tolled
97. If any party timely files objections, the commissioners'         until the clerk mailed the notice of decision to the parties or
award is vacated and the administrative proceeding becomes           their attorneys of record. The trial court concluded Oncor's
a judicial proceeding. Beck, 196 S.W.3d at 786; Garland,             objections were untimely filed, granted Schunke's motion,
963 S.W.2d at 97. However, if no objections are filed, or if         and rendered judgment on the commissioners' award. Oncor
objections are untimely filed, the trial court does not acquire      appealed.
jurisdiction beyond its ministerial duty to render judgment on
the commissioners' award. Garland, 963 S.W.2d at 97 (citing
Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 938 (1958)).
                                                                                             DISCUSSION
In this case, Oncor filed a condemnation petition in the district     *2 On appeal, Oncor argues its objections were timely filed
court in Mills County, Texas. In its petition, Oncor sought to       and therefore the trial court erred in rendering judgment on the
condemn land owned by James Milton Schunke. The district             commissioners' award. Two provisions of the Texas property
court appointed special commissioners, who heard the case            code are central to the issue presented in this appeal. The first
and decided to award Schunke $367,000.00 in damages for              provision, section 21.049, states:
the condemnation of his land. Oncor filed the commissioners'
award and a notice of the commissioners' decision with                            The judge of a court hearing a
the trial court clerk on September 26, 2011. The notice of                        proceeding under this chapter shall
decision instructed the trial court clerk to mail, by certified or                inform the clerk of the court as to a
registered mail, a copy of the notice to Schunke's and Oncor's                    decision by the special commissioners
attorneys of record. On September 28, 2011, the trial court                       on the day the decision is filed or on
clerk mailed a copy of the notice of decision to Schunke's                        the next working day after the day the
attorneys of record, but she did not mail a copy of the notice of                 decision is filed. Not later than the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013)


            next working day after the day the                       1978, no writ), disapproved of on other grounds by State v.
            decision is filed, the clerk shall send                  Bristol Hotel Asset Co., 65 S.W.3d 638, 642 (Tex.2001)).
            notice of the decision by certified or
            registered United States mail, return                     *3 [1] Here, it is undisputed that the trial court clerk never
            receipt requested, to the parties in the                 sent notice to Oncor as required by section 21.049. A deputy
            proceeding, or to their attorneys of                     clerk testified that one of Oncor's attorneys gave her the notice
            record, at their addresses of record.                    of decision for filing, she filed the notice of decision, and
                                                                     handed the attorney a file-stamped copy of the notice. The
TEX. PROP.CODE ANN. § 21.049 (West 2000). The second                 clerk also testified that she mailed a copy of the notice of
provision, section 21.018, states:                                   decision to Schunke's attorney, but she never mailed a copy
                                                                     to Oncor's attorney because it was her understanding that she
  (a) A party to a condemnation proceeding may object to the
                                                                     did not need to mail the notice to the condemning entity. The
  findings of the special commissioners by filing a written
                                                                     clerk further testified that no one else in her office mailed a
  statement of the objections and their grounds with the court
                                                                     copy of the notice to Oncor because it would have been noted
  that has jurisdiction of the proceeding. The statement must
                                                                     in the file.
  be filed on or before the first Monday following the 20th
  day after the day the commissioners file their findings with
                                                                     Applying John to these facts, we conclude Oncor's time to
  the court.
                                                                     file objections to the commissioners' award was tolled until
  (b) If a party files an objection to the findings of the special   the trial court clerk mailed the notice of decision as required
  commissioners, the court shall cite the adverse party and          by section 21.049. See John, 826 S.W.2d at 139 (“A majority
  try the case in the same manner as other civil causes.             of this court holds that, in a condemnation proceeding, the
                                                                     parties' time to object to the special commissioners' award
TEX. PROP.CODE ANN. § 21.018 (West 2003).                            is tolled until the clerk sends the required notice pursuant
                                                                     to section 21.049 of the Texas Property Code.”); Garland,
These provisions were construed by the Texas Supreme                 963 S.W.2d at 101 (holding that the timetable for filing
Court in John v. State, 826 S.W.2d 138 (Tex.1992). Section           objections begins when the commissioners' decision is filed
21.049 requires the trial court clerk to mail the notice of          with the trial court, subject to tolling if proper notice is not
decision to the parties not later than the next working day          sent). Because the trial court clerk never mailed the notice as
after the day the decision is filed. TEX. PROP.CODE ANN.             required under section 21.049, Oncor's time to file objections
§ 21.049. In John, the trial court clerk failed to mail the          to the commissioners' award was tolled.
notice of the commissioners' decision to the landowners in
the time period specified in the statute. 826 S.W.2d at 139.          [2] Despite the rule articulated in John, Schunke claims
Instead, the clerk mailed the notice twenty-two days late,           that Oncor's objections were untimely filed. Schunke argues
which was after the time for filing objections had passed            that John does not apply to this case because Oncor had
under section 21.018(a). Id. Two days after the clerk mailed         actual notice of the filing of the notice of the commissioners'
the notice of decision, the landowners filed their objections.       decision. Specifically, Oncor's lawyer gave the notice of
Id. The Texas Supreme Court held that the landowners'                decision to the trial court clerk, who filed the notice and
objections were timely filed because the time to object to           handed Oncor's attorney a file-stamped copy of the notice. 1
the commissioners' award was tolled until the clerk mailed           We disagree with Schunke's assertion that the act of handing
the notice of decision as required under section 21.049.             a file-stamped copy of the notice of decision to one of Oncor's
Id. The Texas Supreme Court construed section 21.049 as              attorneys satisfied the clerk's mandatory duty to mail the
mandatory, concluding that “in condemnation cases, the clerk         notice to the parties or their attorneys under section 21.049.
must comply with the notice provisions.” Id. at 140. In              Section 21.049, which makes no mention of actual notice,
reaching its holding, the Texas Supreme Court noted that             specifies the manner in which notice is to be provided, stating
when a statute provides the method by which notice shall be          “the clerk shall send notice of the decision by certified or
given in a particular instance, the notice provision must be         registered United States mail, return receipt requested, to the
followed with reasonable strictness. Id. at 141 n. 4 (citing         parties in the proceeding, or to their attorneys of record, at
Rotello v. Brazos Cnty. Water Control and Improvement Dist.          their addresses of record.” See TEX. PROP.CODE ANN.
No. 1, 574 S.W.2d 208, 212 (Tex.App.-Houston [1st Dist.]             § 21.049. As the Texas Supreme Court stated in John, the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013)


                                                                      equitable tolling and because Oncor judicially admitted
requirements set out in section 21.049 must be followed with
                                                                      that the commissioners' award was filed with the clerk on
reasonable strictness. John, 826 S.W.2d at 141 n. 4.
                                                                      September 26, 2011. We find these arguments unconvincing.
1                                                                     First, under the rule articulated in John, Oncor was
       Apparently, the practice of a party filing the notice
                                                                      not required to satisfy the requirements for equitable
       of decision on behalf of the commissioners is not
                                                                      tolling. Second, any admission concerning the date the
       unusual. A similar practice was described in State v.
                                                                      commissioners' award was filed does not change the fact that
       Garland, 963 S.W.3d 95, 99 (Tex.App.-Austin 1998,
       no pet.) (“We are informed ... that a representative of
                                                                      the time to file objections was tolled until the clerk mailed
       the condemnor typically offers to carry out the actual         notice to the parties or their attorneys as required by section
       filing of the document, and that such offer is usually         21.049.
       accepted by the commissioners. We see no reason why
       the commissioners may not authorize another person,            In sum, the clerk's act of handing a file-stamped copy of the
       including a party to the proceeding, to fulfil[l] this         notice of decision to one of Oncor's attorneys did not satisfy
       responsibility.”).                                             the clerk's duty to mail the notice of decision as required by
Schunke next argues this case warrants a departure from               section 21.049. Moreover, Oncor was entitled to rely on the
the rule articulated in John because the clerk failed to              rule articulated in John, which provides that the time for filing
send notice to the condemning entity as opposed to the                objections to the commissioners' award is tolled until the clerk
landowner. Schunke points out that John was based in part             mails notice to the parties or their attorneys as required by
on the principle that condemnation statutes are to be liberally       section 21.049. See 826 S.W.2d at 139.
construed for the benefit of the landowner. Id. at 140.
However, John was also based on the principle that statutes
that are clear and unambiguous must be enforced as written.                                  CONCLUSION
Id. (“Moreover, since the language of the statute is clear and
unambiguous, it should be enforced as written, giving its             The trial court erred in concluding Oncor's objections
terms their usual and ordinary meaning, and without resorting         were untimely filed and in rendering judgment on the
to the rules of construction.”). Notably, section 21.049 does         commissioners' award. Because Oncor's objections were
not direct the clerk to mail the notice to the landowner only.        timely filed, the administrative condemnation proceeding was
Rather, section 21.049 expressly requires the clerk to mail the       converted to a judicial condemnation proceeding. Therefore,
notice “to the parties in the proceeding, or to their attorneys       the trial court's judgment is REVERSED, and this case is
of record.” See TEX. PROP.CODE ANN. § 21.049 (emphasis                REMANDED to the trial court for further proceedings.
added).

 *4 Schunke further argues that Oncor's objections were               All Citations
untimely because Oncor failed to satisfy the requisites for
                                                                      Not Reported in S.W.3d, 2013 WL 6672494

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.                                                  4
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900




     KeyCite Yellow Flag - Negative Treatment                               Reversed and remanded.
Distinguished by In re Bliss & Glennon, Inc.,   Tex.App.-Hous. (1 Dist.),
 January 7, 2014                                                            Willett, J., concurred in part and filed opinion.
                       341 S.W.3d 919
                   Supreme Court of Texas.
                                                                             West Headnotes (5)
             Larry ROCCAFORTE, Petitioner,
                           v.
             Jefferson COUNTY, Respondent.                                   [1]     Appeal and Error
                                                                                        Judgment
             No. 09–0326. | Argued Oct. 14,                                          30 Appeal and Error
            2010. | Decided April 29, 2011.                                          30V Presentation and Reservation in Lower Court
                                                                                     of Grounds of Review
Synopsis                                                                             30V(B) Objections and Motions, and Rulings
Background: Former chief deputy constable brought §                                  Thereon
1983 wrongful termination action against county, county                              30k223 Judgment
constable, and county employees. After jury returned a                               Even if court erred in rendering final judgment
verdict in favor of former chief with respect to the claims                          after it had issued a stay in proceedings
against constable, the 136th District Court, Jefferson County,                       pending an interlocutory appeal by plaintiff,
Milton G. Shuffield, J., granted county's plea to jurisdiction,                      former chief deputy constable waived such
and former chief brought interlocutory appeal. While                                 error in wrongful termination action brought by
interlocutory appeal was pending, the District Court rendered                        former chief deputy constable against county
final judgment against constable. Constable appealed, and                            and other constable; trial court's final judgment
former chief cross-appealed. The Beaumont Court of Appeals                           was voidable, rather than void, and former chief
affirmed in part, reversed in part, and rendered judgment                            deputy constable failed to object to entry of final
that former chief take nothing. In the interlocutory appeal,                         judgment.
the Beaumont Court of Appeals, 281 S.W.3d 230, modified
the dismissal order to reflect that the dismissal was without                        4 Cases that cite this headnote
prejudice and affirmed the order as modified. Former chief
petitioned for review.                                                       [2]     Appeal and Error
                                                                                        Nature and grounds of right
                                                                                     30 Appeal and Error
Holdings: The Supreme Court, Jefferson, C.J., held that:                             30IV Right of Review
                                                                                     30IV(A) Persons Entitled
[1] even if court erred in rendering final judgment after it had                     30k136 Nature and grounds of right
issued a stay in proceedings, former chief waived such error;                        The right of appeal should not be lost due to
                                                                                     procedural technicalities.
[2] Court of Appeals would treat interlocutory appeal that was
                                                                                     1 Cases that cite this headnote
pending when trial court issued a final judgment as an appeal
from the final judgment;
                                                                             [3]     Appeal and Error
[3] provision in statute requiring notice of suit against county                         Interlocutory Proceedings Brought Up in
via mail was not a jurisdictional requirement; and                                   General
                                                                                     30 Appeal and Error
[4] provision in statute requiring notice of suit against county                     30XVI Review
via mail was satisfied by hand-delivery of notice.                                   30XVI(B) Interlocutory, Collateral, and
                                                                                     Supplementary Proceedings and Questions




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       1
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

        30k869 On Appeal from Final Judgment                             against county and other constable. V.T.C.A.,
        30k870 Interlocutory Proceedings Brought Up in                   Local Government Code § 89.0041.
        General
        30k870(1) In general                                             5 Cases that cite this headnote
        Court of Appeals would treat interlocutory
        appeal that was pending when trial court
        issued a final judgment as an appeal from
        the final judgment; claims against defendant             Attorneys and Law Firms
        that were subject matter of interlocutory appeal
        were not severed prior to entry of final                 *920 Laurence W. Watts, Watts & Associates, P.C.,
        judgment, defendant remained a party to the              Missouri City, TX, Brandon David Mosley, Cowan &
        underlying proceeding, and final judgment                Lemmon, LLP, Houston, TX, for Larry Roccaforte.
        implicitly modified the interlocutory order,
        which merged with it. Rules App.Proc., Rule              Thomas F. Rugg, District Attorney's Office, First Assistant
        27.3.                                                    —Civil Div., Steven L. Wiggins, Jefferson County District
                                                                 Attorney Office, Thomas E. Maness, Criminal District
        16 Cases that cite this headnote                         Attorney, Beaumont, TX, for Jefferson County.

                                                                 Todd K. Sellars, Dallas County Assistant Attorney, Dallas,
 [4]    Counties                                                 TX, for Amicus Curiae Dallas County, Texas.
           Notice, Demand, or Presentation of Claim
        104 Counties                                             Opinion
        104XII Actions
                                                                 Chief Justice JEFFERSON delivered the opinion of the Court,
        104k211 Conditions Precedent
        104k213.5 Notice, Demand, or Presentation of             joined by Justice HECHT, Justice WAINWRIGHT, Justice
        Claim                                                    MEDINA, Justice GREEN, Justice JOHNSON, Justice
        104k213.5(1) In general                                  GUZMAN, and Justice LEHRMANN, and joined by Justice
        Provision in statute governing local government          WILLETT as to parts I through III.
        providing that, upon motion by the defendant, an
                                                                 The Local Government Code requires a person suing a county
        action against a county or county official must
                                                                 to give the county judge and the county or district attorney
        be dismissed if plaintiff failed to provide written
                                                                 notice of the claim. TEX. LOC. GOV'T CODEE § 89.0041.
        notice via mail to the county judge or district
                                                                 The plaintiff provided that notice here, but did so by personal
        attorney, was not a jurisdictional requirement.
                                                                 service of process, rather than registered or certified mail as
        V.T.C.A., Local Government Code § 89.0041.
                                                                 the statute contemplates. We conclude that when the requisite
        4 Cases that cite this headnote                          county officials receive timely notice enabling them to answer
                                                                 and defend the claim, the case should not be dismissed.
                                                                 Because the court of appeals concluded otherwise, we reverse
 [5]    Counties
                                                                 its judgment and remand the case to the trial court for further
           Service or presentation; timeliness
                                                                 proceedings.
        104 Counties
        104XII Actions
        104k211 Conditions Precedent                             I. Background
        104k213.5 Notice, Demand, or Presentation of             Former Chief Deputy Constable Larry Roccaforte sued
        Claim                                                    Jefferson County and Constable Jeff Greenway, alleging that
        104k213.5(2) Service or presentation; timeliness
                                                                 his wrongful termination deprived him of rights guaranteed
        Statute requiring that a plaintiff filing suit against
                                                                 by the Texas Constitution. Roccaforte personally served
        a county or county official must provide notice of
                                                                 County Judge Carl Griffith with the suit, and fifteen days
        suit via mail to county judge or district attorney
                                                                 later, the County (represented by the district attorney) and
        was satisfied by hand-delivery of notice, rather
                                                                 Constable Greenway answered, denying liability. The County
        than delivery by mail, in wrongful termination
                                                                 propounded written discovery requests, deposed Roccaforte,
        action brought by former chief deputy constable


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

and presented County officials for depositions. The County
also filed a plea to the jurisdiction, asserting that Roccaforte               Roccaforte notes that immediately
did not give requisite notice of the suit. See TEX. LOC.                       after the dismissal order, the trial of the
GOV'T CODEE § 89.0041. Roccaforte disagreed, arguing                           case proceeded to judgment without
that the statute applied only to contract claims. Alternatively,               the County as a party. No one disputes
he argued that 42 U.S.C. § 1983 preempted the notice                           that all the claims against all other
requirements and that he substantially complied with them in                   parties have been resolved. The order
any event.                                                                     of dismissal is therefore appealable
                                                                               whether or not the statute at issue is
Although the trial court indicated that it would sustain the                   jurisdictional.
County's plea and sever those claims from the underlying
                                                                   281 S.W.3d 230, 231 n. 1. The court ultimately concluded
case, it did not immediately sign an order doing so. In the
                                                                   that Roccaforte's failure to notify the County of the suit by
meantime, Roccaforte tried his claims against Greenway. A
                                                                   registered or certified mail mandated dismissal of his suit
jury returned a verdict in Roccaforte's favor. Afterwards, the
                                                                   against the County, but not because the trial court lacked
trial court signed an order granting the County's jurisdictional
                                                                   jurisdiction. Id. at 236–37. Accordingly, the court modified
plea. The order did not sever the claims from the underlying
                                                                   the dismissal order to reflect that dismissal was without
case. Roccaforte then pursued this interlocutory appeal. His
                                                                   prejudice and affirmed the order as modified. Id.
notice of appeal stated that “[p]ursuant to Civ. P. Rem.Code §
51.014(b), all proceedings are *921 stayed in the trial court
                                                                   Roccaforte petitioned this Court for review, which we
pending resolution of the appeal.” But the proceedings were
not stayed.                                                        granted. 2 53 Tex.Sup.Ct.J. 1061 (Aug. 27, 2010).


In the underlying case, Greenway moved for judgment                2      Dallas County submitted an amicus curiae brief in
notwithstanding the verdict, which the trial court granted                support of Jefferson County.
as to Roccaforte's property interest and First Amendment
retaliation claims but denied as to Roccaforte's claimed           II. Did the trial court's final judgment moot this
violation of his liberty interest. Roccaforte moved for            interlocutory appeal?
entry of judgment. Notwithstanding the statutory stay              Before turning to the merits, we must decide a procedural
referenced in Roccaforte's notice of appeal, the trial court       matter: What happens when a party perfects an appeal of
rendered judgment for Roccaforte and awarded damages,              an interlocutory judgment that has not been severed from
attorney's fees, and costs. The judgment was titled “FINAL         the underlying action, and that action proceeds to trial and
JUDGMENT”; it “denie[d] all relief no [sic] granted in this        a final judgment? The trial court did not sever Roccaforte's
judgment”; and it stated “[t]his is a FINAL JUDGMENT.”             claims against the County 3 and denied “all relief not granted”
The County was included in the case caption. No one objected       in its final judgment. Ordinarily, under these circumstances,
to the continuation of trial court proceedings despite the         Roccaforte would have to complain on appeal that the
statutory stay.                                                    trial court erroneously dismissed those claims. Roccaforte,
                                                                   however, did not complain about the County's dismissal in
Greenway appealed, and Roccaforte cross-appealed, raising          his appeal from the final judgment. His separate interlocutory
as his only issues complaints regarding the trial court's          appeal, then, rests on a precipice of mootness.
JNOV on his claims against Greenway. The court of appeals
affirmed in part and reversed in part, rendering judgment          3      “As a rule, the severance of an interlocutory judgment
that Roccaforte take nothing. Greenway v. Roccaforte, 2009
                                                                          into a separate cause makes it final.” Diversified Fin.
WL 3460683, at *6, 2009 Tex.App. LEXIS 8290, at *15                       Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C.,
(Tex.App.-Beaumont 2009, pet. denied). 1                                  63 S.W.3d 795, 795 (Tex.2001) (per curiam).


1      Today, we deny that petition for review.                     *922 A. Roccaforte waived any complaint about the
                                                                   trial court's actions during the statutory stay.
In Roccaforte's separate interlocutory appeal, the court of
                                                                   Although Roccaforte's interlocutory appeal was supposed to
appeals made the following notation:
                                                                   stay all proceedings in the trial court pending resolution of



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    3
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

the appeal, 4 Roccaforte did not object to the trial court's       Escalante, 251 S.W.3d at 725. In Henry, the court held
rendition of judgment while the stay was in effect. To the         that a party's failure to object to the trial court's action in
contrary, he affirmatively moved for entry of judgment.            violation of the stay waived any error resulting from that
Because a final judgment frequently moots an interlocutory         action. Henry, 2005 WL 1320121, at *1–2, 2005 Tex.App.
                                                                   LEXIS 4310, at *4 (holding that trial court's grant of summary
appeal, 5 we must decide whether the trial court's failure to
                                                                   judgment mooted interlocutory appeal challenging denial of
observe the stay made the final judgment void or merely
                                                                   special appearance). We find particularly instructive a case
voidable. If the final judgment is void, it would have no
                                                                   involving a trial court's rendition of final judgment while
impact on this interlocutory appeal. Lindsay v. Jaffray, 55
                                                                   an interlocutory appeal of a class certification order was
Tex. 626 (Tex.1881) (“A void judgment is in legal effect
                                                                   pending:
no judgment.”) (quoting FREEMAN ON JUDGMENTS, §
117). 6 If voidable, then we must decide whether it moots this                 [I]f a trial court proceeds to trial
proceeding. See Travelers Ins. Co. v. Joachim, 315 S.W.3d                      during the interlocutory appeal, the
860, 863 (Tex.2010) (observing that voidable orders must be                    class action plaintiff must inform
corrected by direct attack and, unless successfully attacked,                  the court of section 51.014(b) and
become final). We conclude it is voidable.                                     request that the stay be enforced. If
                                                                               a court proceeds to trial over the
4      TEX. CIV. PRAC. & REM.CODE § 51.014(b); see                             objection of a class action plaintiff, the
       also TEX.R.APP. P. 29.5 (providing that “[w]hile an                     class action plaintiff could request a
       appeal from an interlocutory order is pending, the                      mandamus and this court would grant
       trial court retains jurisdiction of the case and unless                 it. However, if the class action plaintiff
       prohibited by statute may make further orders, including                fails to inform the trial court of section
       one dissolving the order complained of on appeal”)                      51.014(b), and allows the court to
       (emphasis added).                                                       proceed to trial, as happened here, the
5                                                                               *923 plaintiff waives the right to
       See, e.g., Hernandez v. Ebrom, 289 S.W.3d 316, 319
       (Tex.2009) (“Appeals of some interlocutory orders
                                                                               object or request any relief on appeal.
       become moot because the orders have been rendered                       See TEX.R.APP. P. 33.1(a). We see
       moot by subsequent orders.”).                                           this as no different from any other trial
                                                                               court error that is not preserved—it is
6      See also Travelers Ins. Co. v. Joachim, 315 S.W.3d                      waived.
       860, 863 (Tex.2010) (noting that “[a] judgment is
       void ... when it is apparent that the court rendering       Siebenmorgen v. Hertz Corp., No. 14–97–01012–CV, 1999
       judgment had no jurisdiction of the parties or property,    WL 21299, at *3, 1999 Tex.App. LEXIS 311, at *10–
       no jurisdiction of the subject matter, no jurisdiction to   11 (Tex.App.-Houston [14th Dist.] Jan. 21, 1999, no pet.)
       enter the particular judgment, or no capacity to act”)      (dismissing as moot interlocutory appeal of order denying
       (quoting Browning v. Prostok, 165 S.W.3d 336, 346
                                                                   class certification).
       (Tex.2005)).
Two of our courts of appeals have held that the failure to         A third court of appeals has implicitly concluded that parties
object when a trial court proceeds despite the automatic stay      can waive the right to insist on a section 51.014(b) stay.
waives any error the trial court may have committed by             See Lincoln Property Co. v. Kondos, 110 S.W.3d 712, 715
failing to impose it. See Escalante v. Rowan, 251 S.W.3d 720,      (Tex.App.-Dallas 2003, no pet.). In that case, the court
724–25 (Tex.App.-Houston [14th Dist.] 2008), rev'd on other        observed that the trial court's grant of summary judgment
grounds, 332 S.W.3d 365 (Tex.2011) (per curiam); Henry             while an interlocutory appeal was pending violated the
v. Flintrock Feeders, Ltd., No. 07–04–0224–CV, 2005 WL             statutory stay. Noting that “neither party requested a stay
1320121, at *1, 2005 Tex.App. LEXIS 4310, at *1 (Tex.App.-         from this Court” and “both parties sought to commence the
Amarillo June 1, 2005, no pet.) (mem.op.). In Escalante,           ‘trial’ below by filing and/or arguing motions for summary
the court of appeals held that a party's failure to object to      judgment while this appeal was pending,” the court of appeals
a trial court's ruling on summary judgment motions during          did not conclude that the trial court's summary judgment
the statutory stay “failed to preserve error as to any objection   was void. Id. at 715. Instead, the appellate court held that
that the summary judgment is voidable based on the stay.”          the summary judgment mooted the interlocutory appeal. Id.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

at 715–16 (noting that the interlocutory class certification       court signed a final judgment disposing of all parties and all
order merged into the final judgment). The court concluded:        claims and that Roccaforte did not present in his appeal from
“By rendering a final judgment during this appeal, the trial       that judgment the arguments he advances in this interlocutory
court also rendered itself powerless to reconsider its class       appeal.
certification ruling were we to conclude here the ruling was
entered in error.” Id. at 715.
                                                                   B. The trial court's final judgment implicitly modified its
We agree with those decisions that have held that a party          interlocutory order, and we treat this appeal as relating
may waive complaints about a trial court's actions in              to that final judgment.
violation of the stay imposed by section 51.014(b). That            [2] We have repeatedly held that the right of appeal should
stay differs from a situation in which the relevant statute        not be lost due to procedural technicalities. 8 Roccaforte
vests “exclusive jurisdiction” in a particular forum. See, e.g.,   timely perfected appeals from both the interlocutory order
Kalb v. Feuerstein, 308 U.S. 433, 439, 60 S.Ct. 343, 84            and the final judgment, and this is not a situation in which
L.Ed. 370 (1940) (noting that bankruptcy law in effect at the      further proceedings mooted the issues raised in Roccaforte's
time “vested in the bankruptcy courts exclusive jurisdiction”      interlocutory appeal. 9
and “withdr[ew] from all other courts all power under any
circumstances”). For that reason, we have held that actions        8      See, e.g., Guest v. Dixon, 195 S.W.3d 687, 688
taken in violation of a bankruptcy stay are void, not just
                                                                          (Tex.2006) ( “[W]e have repeatedly stressed that
voidable. Cont'l Casing Corp. v. Samedan Oil Corp., 751                   procedural rules should be construed and applied so
S.W.2d 499, 501 (Tex.1988). 7                                             that the right of appeal is not unnecessarily lost to
                                                                          technicalities.”); Crown Life Ins. Co. v. Estate of
7                                                                         Gonzalez, 820 S.W.2d 121, 121–22 (Tex.1991) (per
       But see Sikes v. Global Marine, Inc., 881 F.2d 176, 178
                                                                          curiam)(stating that procedural rules should be “liberally
       (5th Cir.1989) (holding that, under the 1978 Bankruptcy
                                                                          construed so that the decisions of the courts of appeals
       Act, “the better reasoned rule characterizes acts taken
                                                                          turn on substance rather than procedural technicality”).
       in violation of the automatic stay as voidable rather
       than void”); see also Chisholm v. Chisholm, No. 04–06–      9      See, e.g., Isuani v. Manske–Sheffield Radiology Grp.,
       00504–CV, 2007 WL 1481574, at *2–3, 2007 Tex.App.                  P.A., 802 S.W.2d 235, 236 (Tex.1991) (holding that
       LEXIS 3936, at *6–7 (Tex.App.-San Antonio May                      final judgment mooted interlocutory appeal of order
       23, 2007, no pet.) (noting conflict between Sikes and              granting or denying temporary injunction); Providian
       Continental Casing ); In re De La Garza, 159 S.W.3d                Bancorp Servs. v. Hernandez, No. 08–04–00186–CV,
       119, 120–21 (Tex.App.-Corpus Christi 2004, no pet.)                2005 WL 82197, at *1, 2005 Tex.App. LEXIS 288, at
       (same); Oles v. Curl, 65 S.W.3d 129, 131 n. 1 (Tex.App.-           *2 (Tex.App.-El Paso Jan. 13, 2005, no pet.) (mem.op.)
       Amarillo 2001, no pet.)(same); Chunn v. Chunn, 929                 (dismissing as moot interlocutory appeal from order
       S.W.2d 490, 493 (Tex.App.-Houston [1st Dist.] 1996, no             denying motion to compel arbitration, because trial court
       pet.) (same).                                                      entered an order compelling arbitration); Mobil Oil Corp.
 [1] But as we have noted, “a court's action contrary to a                v. First State Bank of Denton, No. 2–02–119–CV, 2004
statute or statutory equivalent means the action is erroneous             WL 1699928, at *1, 2004 Tex.App. LEXIS 6940, at *2
or ‘voidable,’ not that the ordinary appellate or other direct            (Tex.App.-Fort Worth July 29, 2004, no pet.) (dismissing
                                                                          as moot interlocutory appeal from class certification
procedures to correct it may be circumvented.” Mapco,
                                                                          order, because trial court subsequently vacated order,
Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990); cf. Univ.
                                                                          decertified class, and dismissed class action); Lincoln
of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351,
                                                                          Property Co. v. Kondos, 110 S.W.3d 712, 715–16
359 (Tex.2004) (noting that failure to comply with a non-
                                                                          (Tex.App.-Dallas 2003, no pet.) (dismissing as moot
jurisdictional statutory requirement may result in the loss               interlocutory appeal of order granting class certification,
of a claim, but that failure must be timely asserted and                  as trial court subsequently granted summary judgment
compliance can be waived). That is the case here. The trial               motion); see also Hernandez, 289 S.W.3d at 321
court's rendition of final judgment while the stay was in effect          (acknowledging that a party may not, after trial and
was voidable, not void, and Roccaforte's failure to object to             an unfavorable judgment, prevail on a complaint that
the trial court's actions waived any error related to the stay.           the party's summary judgment motion should have been
We must, therefore, confront the fact that the trial *924                 granted, nor could a party complain of a failure to dismiss
                                                                          a health care liability claim based on an inadequate expert


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     5
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

       report, after a full trial and evidence establishing the   Local Government Code section 89.0041 provides:
       elements of that claim).
                                                                    (a) A person filing suit against a county or against a county
[3]   Our procedural rules provide that:
                                                                       official in the official's capacity as a county official shall
            After an order or judgment in a civil                      deliver written notice to:
            case has been appealed, if the trial
                                                                       (1) the county judge; and
            court modifies the order or judgment,
            or if the trial court vacates the order or                 (2) the county or district attorney having jurisdiction to
            judgment and replaces it with another                         defend the county in a civil suit.
            appealable order or judgment, the
            appellate court must treat the appeal as                (b) The written notice must be delivered by certified or
            from the subsequent order or judgment                      registered mail by the 30th business day after suit is filed
            and may treat actions relating to the                      and contain:
            appeal of the first order or judgment as
            relating to the appeal of the subsequent                   (1) the style and cause number of the suit;
            order or judgment. The subsequent
                                                                       (2) the court in which the suit was filed;
            order or judgment and actions relating
            to it may be included in the original                      (3) the date on which the suit was filed; and
            or supplemental record. Any party
            may nonetheless appeal from the                            (4) the name of the person filing suit.
            subsequent order or judgment.
                                                                    (c) If a person does not give notice as required by this
TEX.R.APP. P. 27.3. Here, although the trial court's final             section, the court in which the suit is pending shall
judgment did not expressly modify its interlocutory order,             dismiss the suit on a motion for dismissal made by the
it did so implicitly. Because the claims against the County            county or the county official.
had not been severed, the County remained a party to the
                                                                  TEX. LOC. GOV'T CODEE § 89.0041. In 2005, the
underlying proceeding despite the interlocutory appeal. The
                                                                  Legislature amended the Government Code to provide that
final judgment necessarily replaced the interlocutory order,
                                                                  “[s]tatutory prerequisites to a suit, including the provision of
which merged into the judgment, 10 even though Roccaforte's
                                                                  notice, are jurisdictional requirements in all suits against a
interlocutory appeal remained pending. Under our rules,
                                                                  governmental entity.” TEX. GOV'T CODE § 311.034.
however, we may treat this interlocutory appeal as an *925
appeal from the final judgment. That permits us to reach
                                                                  The County contends section 311.034 makes Roccaforte's
the merits of Roccaforte's claims rather than dismiss the
                                                                  failure to comply with section 89.0041's notice requirements
interlocutory appeal as moot.
                                                                  jurisdictional—an issue we have never decided. Our courts
                                                                  of appeals, however, have concluded that the notice
10     See Webb v. Jorns, 488 S.W.2d 407, 408–09 (Tex.1972)       requirements are not jurisdictional, even in light of section
       (holding that interlocutory judgment merged into final     311.034. See El Paso Cnty. v. Alvarado, 290 S.W.3d
       judgment, which was then appealable).                      895, 898–99 (Tex.App.-El Paso 2009, no pet.) (holding
Although not relying on rule 27.3, the court of appeals took      that section 89.0041 is not jurisdictional because section
a similar approach, treating Roccaforte's appeal as though        311.034 applies only to prerequisites to file suit, not post-
it were from the final judgment. 281 S.W.3d at 231 n. 1.          suit notice requirements); Ballesteros v. Nueces Cnty., 286
Similarly, we treat Roccaforte's appellate complaints about       S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009, pet. denied)
the trial court's grant of the County's jurisdictional plea as    (same); 281 S.W.3d 230, 232–33 (same); Dallas Cnty. v.
though they related to the appeal of the final judgment. We       Coskey, 247 S.W.3d 753, 754–56 (Tex.App.-Dallas 2008, pet.
turn now to the merits of his claim.                              denied) (same); Dallas Cnty. v. Autry, 251 S.W.3d 155, 158
                                                                  (Tex.App.-Dallas 2008, pet. denied) (same); Cnty. of Bexar
                                                                  v. Bruton, 256 S.W.3d 345, 348–49 (Tex.App.-San Antonio
III. The post-suit notice requirements are not                    2008, no pet.) (same).
jurisdictional.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                6
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

 [4] We presume “that the Legislature did not intend to make              sufficient because the purpose of the statute was to ensure
the [provision] jurisdictional[,] a presumption overcome only             notice, and that purpose was accomplished), Ballesteros
by clear legislative intent to the contrary.” City of DeSoto              v. Nueces Cnty., 286 S.W.3d 566, 570 (Tex.App.-
v. White, 288 S.W.3d 389, 394 (Tex.2009). The statutes'                   Corpus Christi 2009, pet. denied) (same), Dallas Cnty.
                                                                          v. Coskey, 247 S.W.3d 753, 757 (Tex.App.-Dallas 2008,
language reflects no such intent here. Section 311.034 applies
                                                                          pet. denied) (same), and Dallas Cnty. v. Autry, 251
to prerequisites to suit, not notice requirements that can be
                                                                          S.W.3d 155, 158 (Tex.App.-Dallas 2008, pet. denied)
satisfied only after suit is filed. Compare TEX. GOV'T CODE
                                                                          (same), with 281 S.W.3d at 237 (holding that “[r]eading
§ 311.034, with TEX. LOC. GOV'T CODEE § 89.0041
                                                                          a broad actual notice or service exception into the statute
(requiring notice of cause number, court in which case is                 —without any attempt by plaintiff to comply—would, in
filed, and date of filing). Nor does Local Government Code                effect, largely eliminate the specified, additional written
section 89.0041 show such intent: that section states that                notice requirement of the statute”). That conflict gives us
a trial court may *926 dismiss a case for noncompliance                   jurisdiction over this interlocutory appeal. TEX. GOV'T
only after the governmental entity has moved for dismissal.               CODE § 22.225(c), (e).
TEX. LOC. GOV'T CODEE 89.0041(c) (“If a person does                 [5] Section 89.0041 ensures that the appropriate county
not give notice as required by this section, the court in which    officials are made aware of pending suits, allowing the county
the suit is pending shall dismiss the suit on a motion for         to answer and defend the case. See Howlett, 301 S.W.3d at
dismissal made by the county or the county official.”). The        846 (“The apparent purpose of section 89.0041 is to ensure
motion requirement means that a case may proceed against           that the person responsible for answering and defending the
those governmental entities that do not seek dismissal—in          suit—the county or district attorney-has actual notice of the
other words, that a county can waive a party's noncompliance.      suit itself.”); Coskey, 247 S.W.3d at 757 (“Section 89.0041's
This confirms that compliance with the notice requirements         notice of suit requirement against a county serves the purpose
is not jurisdictional. See Loutzenhiser, 140 S.W.3d at 359         of aiding in the management and control of the City's finances
(“The failure of a non-jurisdictional requirement mandated by      and property....”). That purpose was served here—the county
statute may result in the loss of a claim, but that failure must   judge and the district attorney had notice within fifteen days
be timely asserted and compliance can be waived.”). We find        of Roccaforte's filing, and they answered and defended the
no basis upon which to conclude that the Legislature intended      suit. Cf. Loutzenhiser, 140 S.W.3d at 360 (observing that “if
section 89.0041 to be jurisdictional.                              in a particular case a governmental unit were not prejudiced
                                                                   by lack of notice and chose to waive it, we do not see
                                                                   how the statutory purpose would thereby be impaired”). The
IV. Where the appropriate county officials receive
                                                                   statute was not intended to create a procedural trap allowing
timely notice of the suit, the case should not be dismissed
                                                                   a county to obtain dismissal even though the appropriate
if notice was provided by some means other than mail.
                                                                   officials have notice of the suit. See *927 Southern Surety
Roccaforte provided timely notice of every item required
                                                                   Co. v. McGuire, 275 S.W. 845, 847 (Tex.Civ.App.-El Paso
by section 89.0041, and the requisite officials received that
                                                                   1925, writ ref'd) (holding that failure to present written claim
notice. Did the Legislature intend to bar Roccaforte's claim,
                                                                   to commissioners' court as required by statute did not bar
merely because that notice was hand-delivered rather than
                                                                   the claim, because “[t]he purpose of the statute was fully
mailed?
                                                                   accomplished by [oral presentment]”); see also Coskey, 247
                                                                   S.W.3d at 757 (“The manner of delivery specified by the
Roccaforte argues that the County's actual notice of the suit
                                                                   statute assures that county officials will receive notice of a
and his substantial compliance with section 89.0041 should
                                                                   suit after it has been filed to enable it to respond timely and
suffice. A number of courts of appeals (though not the court of
                                                                   prepare a defense.”). Because those officers had the requisite
appeals in this case) agree with him. 11 The County disagrees,     notice, we conclude that the trial court erred in dismissing
arguing that the statute requires strict compliance with its       Roccaforte's claims.
terms, and dismissal is mandated if those terms are not
satisfied.
                                                                   V. Conclusion
11     Compare Howlett v. Tarrant Cnty., 301 S.W.3d 840,           Roccaforte's claims against the County should not have been
       847 (Tex.App.-Fort Worth 2009, pet. denied) (holding        dismissed for lack of notice. 12 We reverse the court of
       that substantial compliance with section 89.0041 was        appeals' judgment as to those claims and remand the case



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      7
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

to the trial court for further proceedings. TEX.R.APP. P.           since “the surest guide to legislative intent” is the language
60.2(d).                                                            lawmakers chose. 6 In other words, “Where text is clear, it
                                                                    is determinative of that intent.” 7 The Court today agrees
12        Because this issue is dispositive, we do not reach        that nothing in Section 89.0041 relieves *928 Roccaforte
          Roccaforte's argument that 42 U.S.C. § 1983 preempts      from compliance. So, to escape the statute's emphatic “shall
          section 89.0041's notice requirements.
                                                                    dismiss the suit” mandate, 8 the Court pivots on “actual
                                                                    notice” and “substantial compliance” and holds that the
Justice WILLETT delivered a concurring opinion.                     statute's purpose was fulfilled via hand-delivery.

                                                                    4      341 S.W.3d 919, 926 (explaining that compliance with
Justice WILLETT, concurring in part.
                                                                           the notice requirements of Section 89.0041 of the
I join Parts I–III of the Court's opinion. As for Part IV, I join
                                                                           Local Government Code “is not jurisdictional”) (citation
the result but not the reasoning. There is a better approach, one
                                                                           omitted).
more allegiant to the Legislature's words. Roccaforte's claim
should proceed, but the reason is rooted not in his substantial     5      341 S.W.3d at 926.
compliance but rather the County's substantial dalliance.           6      Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930
                                                                           (Tex.2010) (citation and quotation marks omitted).
***
                                                                    7      Id.
Aristotle would have enjoyed this case, which perfectly
                                                                    8      See TEX. LOC. GOV'T CODEE § 89.0041(c).
illustrates the challenge he recognized of reconciling the
“absoluteness” of the written law with equity in the particular     Honoring a statute's plain words is indispensable, even
      1                                                             if enforcing those words as written works an unpalatable
case. Believing that “the equitable is superior” and that rigid
                                                                    result. To be sure, courts deviate from otherwise-clear
laws must bend, 2 Aristotle urged “a correction of law where
                                                                    textual commands to avert “absurd” results or to vindicate
it is defective owing to its universality.” 3 From Athens,
                                                                    constitutional principles. 9 But as a general matter, if the
Greece to Athens, Texas (and beyond), judges still debate the
                                                                    legal deck is stacked via technical statutory requirements, the
bounds of interpretive discretion—whether it is appropriate
to temper the “absoluteness” of statutory mandates and              Legislature should reshuffle the equities, not us. 10
ameliorate their seeming harshness. Millennia may have
passed since Aristotle's Lyceum, but this great philosophical       9      The absurdity doctrine, rightly understood, is a safety
and jurisprudential debate endures.                                        valve reserved for truly exceptional cases, not just those
                                                                           where the mandated statutory outcome is thought unwise
1                                                                          or inequitable. See generally John F. Manning, The
          Aristotle, Nicomachean Ethics bk. V, ch. 10.
                                                                           Absurdity Doctrine, 116 HARV. L.REV.. 2387 (2003).
2         Id.                                                              As Chief Justice Marshall famously put it, a court's
                                                                           allegiance to the text ceases when applying the text
3         Id.                                                              “would be so monstrous that all mankind would, without
                                                                           hesitation, unite in rejecting the application.” Sturges v.
                                                                           Crowninshield, 17 U.S. (4 Wheat.) 122, 203, 4 L.Ed. 529
                                  I                                        (1819).

As the Court persuasively explains in Part III, the post-suit       10     The Legislature can, of course, if it wishes, statutorily
notice requirements in Section 89.0041 are not jurisdictional,             overturn today's holding that Section 89.0041 is
                                                                           nonjurisdictional and subject to an actual-notice
meaning a County can waive a plaintiff's noncompliance. 4
                                                                           exception.
Here, the County objected to Roccaforte's noncompliance,
prompting the Court to ask: “Did the Legislature intend to          As for whether Section 89.0041's use of phrases like “shall
bar Roccaforte's claim, merely because that notice was hand-        deliver,” 11 “must be delivered,” 12 “as required,” 13 and
delivered rather than mailed?” 5 If phrased that way, our           “shall dismiss” 14 mandates strict compliance, I would
recent and unanimous precedent answers the question “yes,”          take the statute at face value. Beyond that, those desiring


                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    8
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

additional reassurance that lawmakers intended what they                   the purpose of the statute was to ensure notice, and that
enacted can find it in a properly contextual reading of other              purpose was accomplished); Ballesteros v. Nueces Cnty.,
notice-related statutes.                                                   286 S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009,
                                                                           pet. denied) (same); Dallas Cnty. v. Coskey, 247 S.W.3d
                                                                           753, 757 (Tex.App.-Dallas 2008, pet. denied) (same);
11      TEX. LOC. GOV'T CODEE § 89.0041(a).                                Dallas Cnty. v. Autry, 251 S.W.3d 155, 158 (Tex.App.-
12                                                                         Dallas 2008, pet. denied) (same)). Two of the three courts
        Id. § 89.0041(b).
                                                                           of appeals even cite as support two of our decisions
13      Id. § 89.0041(c).                                                  involving notice in other contexts. Coskey, 247 S.W.3d
                                                                           at 757 (“Both Artco–Bell Corp. and Cox Enterprises,
14      Id.                                                                Inc.. support a standard of substantial compliance with
First, the Legislature, while omitting an actual-notice                    notice requirements under certain circumstances, and we
exception from Section 89.0041, expressly included one                     conclude that standard applies in these circumstances.”)
in the Tort Claims Act, stating the Act's pre-suit notice                  (citations omitted); Ballesteros, 286 S.W.3d at 571–72.
                                                                           A third court of appeals opinion in turn relies upon
requirements “do not apply if the governmental unit has
                                                                           Coskey. See Autry, 251 S.W.3d at 158.
actual notice....” 15 The Legislature understands how to                      Closer analysis reveals Coskey and Ballesteros offer
let actual notice excuse technical noncompliance; it easily                   feeble support, as they misinterpret this Court's
could have said actual notice suffices, thus obviating the                    holdings in Cox Enters., Inc. v. Bd. of Trs. of Austin
need for service via certified or registered mail. Instead,                   Indep. Sch. Dist., 706 S.W.2d 956 (Tex.1986), and
it opted against actual notice, presumably on purpose. For                    Artco–Bell Corp. v. City of Temple, 616 S.W.2d 190
better or worse, lawmakers enacted strict compliance, not                     (Tex.1981). The issue in Cox involved how much
substantial compliance. Our interpretive focus, both textual                  particularity was required in notice. 706 S.W.2d at
and contextual, must be on the law as written, and we should                  960 (noting that “less than full disclosure is not
                                                                              substantial compliance” and that “the Open Meetings
refuse to engraft what the Legislature has refused to enact.
                                                                              Act requires a full disclosure of the subject matter
                                                                              of the meetings”). Artco–Bell is likewise inapposite.
15      TEX. CIV. PRAC. & REM.CODE § 101.101(c).                              In Artco–Bell, the Court simply invalidated the
Second, reading “actual notice” into Section 89.0041's post-                  notice requirement in a city's charter and held the
suit notice requirement robs it of any real meaning and                       plaintiff had provided sufficient notice. 616 S.W.2d
                                                                              at 193–94 (“[W]e hold that the requirement of
also makes Section 89.004's pre-suit notice requirement
                                                                              verification represents an unreasonable limitation on
redundant. Section 89.004 forbids someone from suing a
                                                                              the City's liability and is invalid as it is contrary to
county or county official “unless the person has presented
                                                                              the limitation of authority placed upon home rule
the claim to the commissioners court and the commissioners                    cities....”) (footnote omitted).
court neglects or refuses to pay all or part of the claim....” 16             Cox was about the specificity of notice; Artco–Bell
This presentment requirement assures actual notice of a claim                 resulted in the invalidation of notice. In neither case
before it is filed and was already on the books when Section                  did the Court craft an exception for notice. The lower
89.0041 was added in 2003. Logically then, Section 89.0041                    courts' treatment of these cases was thus strained,
must require something in addition to the preexisting notice                  and should not be taken as a correct reading of our
                                                                              jurisprudence on statutory notice requirements.
and presentment requirements. 17
                                                                    *929 The requisite officials here received notice, but they
16      TEX. LOC. GOV'T CODEE § 89.004(a).                          did not receive “requisite notice,” as the Court states. 18
                                                                    The Court may deem it adequate, but it is irrefutably
17      Another point: As the Court notes, some courts              not requisite. As the Court reads Section 89.0041, it is
        of appeals have concluded that a substantial-               not only nonjurisdictional (I agree on this point), but also
        compliance exception lies hidden within Section             nonmandatory. I acknowledge the statute's no-exceptions
        89.0041, notwithstanding the statute's emphatic “shall
                                                                    mandate works a harsh result, 19 but to the degree this seems
        dismiss” mandate. 341 S.W.3d at 928 (citing Howlett
        v. Tarrant Cnty., 301 S.W.3d 840, 847 (Tex.App.-            a trap for the unwary, it is a trap the Legislature left well
        Fort Worth 2009, pet. denied) (holding that substantial     marked.
        compliance with Section 89.0041 was sufficient because




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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

18     341 S.W.3d at 927.                                           point, which on these facts is not whether the County
                                                                    sought dismissal, but when. A governmental body can
19     Had the County “timely asserted” Roccaforte's                raise a jurisdictional bar like immunity from suit whenever
       noncompliance, dismissal would have been mandatory           it pleases because “the trial court does not have—and
       under the statute's rigid, no-discretion mandate, thus
                                                                    never had—power to decide the case,” 21 thus making
       raising the question of whether Section 89.0041's notice
       regime is preempted by 42 U.S.C. § 1983. See Univ.           judgments forever vulnerable to delayed attack. Not so with
       of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351,       nonjurisdictional requirements like this, which are waived
       359 (Tex.2004) (“The failure of a non-jurisdictional         if not timely raised. Under our precedent, dismissal delayed
       requirement mandated by statute may result in the loss       is sometimes dismissal denied: “The failure of a non-
       of a claim, but that failure must be timely asserted         jurisdictional requirement mandated by statute may result in
       and compliance can be waived.”). That question, while        the loss of a claim, but that failure must be timely asserted and
       interesting legally, is not before us.
                                                                    compliance can be waived.” 22 Moreover, “if a governmental
                                                                    unit is to avoid litigation to which it should not be subjected
                                                                    because of lack of notice, it should raise the issue as soon as
                                II
                                                                    possible.” 23 On these facts, there was no timely assertion,
Having said all that, I agree with the Court that Roccaforte        much less one made “as soon as possible.” 24
ultimately wins his notice dispute, but on different grounds.
Instead of asking whether the Legislature meant to bar              21      In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 306
Roccaforte's claim,
                                                                            (Tex.2010) (citation omitted).

I would rephrase the question in a manner less assaultive           22      Loutzenhiser, 140 S.W.3d at 359 (emphasis added).
to the statutory text: Did the County effectively waive
                                                                    23      Id. at 360. “Moreover, if in a particular case a
Roccaforte's noncompliance by not timely asserting it? I
                                                                            governmental unit were not prejudiced by lack of notice
believe so. 20                                                              and chose to waive it, we do not see how the statutory
                                                                            purpose would thereby be impaired.” Id.
20     Waiver may actually be the wrong term; it may be             24      Reading Section 89.0041 in tandem with our
       more accurate to call this forfeiture. As the United
                                                                            settled precedent distinguishing mandatory requirements
       States Supreme Court explains: “Waiver is different from
                                                                            (waivable) from jurisdictional ones (nonwaivable) is
       forfeiture. Whereas forfeiture is the failure to make the
                                                                            consistent with a textualist approach that integrates
       timely assertion of a right, waiver is the intentional
                                                                            established interpretive norms. For example, even the
       relinquishment of a known right.” United States v.
                                                                            most ardent textualist would read a statute of limitations
       Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d
                                                                            in light of the common-law rules of equitable tolling.
       508 (1993) (emphasis added) (citations and quotation
                                                                            See Young v. United States, 535 U.S. 43, 49, 122 S.Ct.
       marks omitted). In any event, under our definition:
                                                                            1036, 152 L.Ed.2d 79 (2002) (“It is hornbook law that
            “[W]aiver” is the intentional relinquishment of
                                                                            limitations periods are customarily subject to equitable
            a right actually or constructively known, or
                                                                            tolling, unless tolling would be inconsistent with the
            intentional conduct inconsistent with claiming that
                                                                            text of the relevant statute.”) (citations and quotation
            right. The elements of waiver include (1) an existing
                                                                            marks omitted); see also United States v. Beggerly, 524
            right, benefit, or advantage held by a party; (2)
                                                                            U.S. 38, 48, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998).
            the party's actual or constructive knowledge of
                                                                            As Justice Scalia noted in Young, a limitations period
            its existence; and (3) the party's actual intent
                                                                            is subject to the principles of equitable tolling, so long
            to relinquish the right or intentional conduct
                                                                            as the statutory text does not preclude such tolling.
            inconsistent with the right.
                                                                            535 U.S. at 47, 122 S.Ct. 1036. Same here, where
          Perry Homes v. Cull, 258 S.W.3d 580, 602–03
                                                                            the Legislature drafts notice requirements in light of
          (Tex.2008) (citations omitted).
                                                                            our decisions differentiating between mandatory and
 *930 True, the County, after waiting for limitations                       jurisdictional provisions and the consequences that flow
to expire, filed a motion for dismissal complaining that                    from each characterization.
Roccaforte provided notice via personal service rather than
                                                                    We have held that waiver is decided on a case-by-case basis,
registered or certified mail. I believe that obscures the key
                                                                    meaning courts look to the totality of the circumstances. 25


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                10
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

                                                                          26      It is true that defendants may assert defenses like
Here, *931 the County sought dismissal based on imperfect
notice more than two years after suit was filed; more than                        limitations in the trial court even following extensive
two years after the County filed its answer; more than two                        discovery and other pre-trial activity. See TEX.R. CIV.
years after the County filed its special exceptions; after the                    P. 94 (affirmative defenses including limitations must
                                                                                  be pleaded); TEX.R. CIV. P. 63 (pleadings may be
County presented three County officials for deposition and
                                                                                  amended without leave of court until seven days before
defended those depositions; after the County sent written
                                                                                  trial). Today's case, though, involves a statutory notice
discovery requests; after the County deposed Roccaforte; and
                                                                                  requirement that mandates action within a prescribed
after the County filed a motion for continuance. If two-plus                      time, something Loutzenhiser held should be raised “as
years qualifies as “timely asserted” or “as soon as possible”—                    soon as possible” since the statutory purpose is to avoid
at least in the context of a statutory notice requirement                         litigation altogether. 140 S.W.3d at 360.
commanding action—then these phrases have been drained                                Section 89.0041 may not be a prerequisite to bringing
of all meaning. 26 Indeed, the only thing the County “timely                          suit, but it is a postrequisite to maintaining suit. In
asserted” was limitations. I would disallow the County's                              my view, Section 89.0041, unlike the Tort Claims
                                                                                      Act, does not allow actual notice to forgive defective
belated insistence on dismissal given its decision to defend
                                                                                      notice, but that does not mean actual notice may
the case for so long, asserting noncompliance only after
                                                                                      not affect the waiver inquiry of whether a defendant
seizing tactical advantage via limitations, and thus materially
                                                                                      “timely asserted” noncompliance. For reasons stated
prejudicing Roccaforte. There is no countervailing prejudice                          above, I believe a county that quickly asserts statutory
in allowing Roccaforte's suit to proceed against the County,                          noncompliance, even if it has actual notice, is entitled
which can hardly argue at this late stage that imperfect                              to dismissal under Section 89.0041. But a county
notice has harmed its legal position (unlike its fiscal position,                     with actual notice that untimely asserts noncompliance
having underwritten years of legal and judicial expenses). On                         (here only after limitations had run two-plus years
these facts, two-plus years of litigation activity to run out                         later) has waived its objection and is not entitled
the limitations clock betrays the County's too-little, too-late                       to dismissal. See City of DeSoto v. White, 288
request for dismissal and constitutes waiver.                                         S.W.3d 389, 400–01 (Tex.2009) (noting that a party
                                                                                      that declines to act in light of “full knowledge” of
25                                                                                    a defect in a nonjurisdictional notice requirement
        See Perry Homes, 258 S.W.3d at 589–91 (explaining
                                                                                      generally waives any complaint). Any other result
        that a party waives an arbitration clause by engaging
                                                                                      would incentivize counties to sit on their rights rather
        in substantial litigation to the other party's detriment or
                                                                                      than assert them immediately. Here, the County would
        prejudice).
                                                                                      be rewarded for wasting over two-years' worth of
           In Jernigan v. Langley, the Court considered whether
                                                                                      judicial resources and taxpayer dollars in defending a
           a defendant physician waived his statutory right
                                                                                      suit it could have easily dismissed from the outset.
           to contest the adequacy of the plaintiff's expert
                                                                                  ***
           reports by waiting too long. 111 S.W.3d 153, 153
           (Tex.2003). The Court held that delay does not always          The Court's understandable desire to work an eminently fair
           result in waiver, but it does when the defendant's             result has led it to revise the statute as desired rather than read
           silence or inaction for such a long period shows               it as enacted. I favor a different approach to the same outcome.
           an intent to yield a known right. Id. at 157. I                Roccaforte should win not because the Court waived the
           would hold that the County's actions are inconsistent          Legislature's words but because the County did.
           with the intent to assert its statutory right to up-
           front dismissal based on defective notice. Moreover,
           Jernigan predates our 2004 decision in Loutzenhiser,           All Citations
           which speaks specifically to statutorily mandated
           notice requirements involving governmental units and           341 S.W.3d 919, 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900
           says notice-based objections should be asserted “as
           soon as possible.” 140 S.W.3d at 360.


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.                                                        11
Verburgt v. Dorner, 959 S.W.2d 615 (1997)
41 Tex. Sup. Ct. J. 138

                                                                                30VII Transfer of Cause
                                                                                30VII(C) Payment of Fees or Costs, and Bonds or
    KeyCite Yellow Flag - Negative Treatment                                    Other Securities
Superseded by Rule as Stated in   Boyd v. State,   Tex.App.-Dallas,             30k387 Delivery or Filing and Service of Bond or
 March 31, 1998                                                                 Undertaking
                                                                                30k387(6) Extension of time and relief in case of
                       959 S.W.2d 615
                                                                                failure to file in time
                   Supreme Court of Texas.
                                                                              Motion for extension of time to file cost bond
          John VERBURGT, individually and                                     is necessarily implied when appellant, acting
                                                                              in good faith, files bond beyond time allowed
          a/n/f of Thomas Verburgt, Timothy
                                                                              by rule but within 15-day period in which
       Verburgt and Joseph Verburgt, Petitioners,
                                                                              appellant would be entitled to move to extend
                          v.
                                                                              filing deadline. Rules App.Proc., Rule 41(a)(1,
        Patricia M. DORNER and the Methodist                                  2) (Repealed).
             Mission Home, Respondents.
                                                                              989 Cases that cite this headnote
            No. 96–1026. | Argued April 24,
           1997. | Decided Dec. 4, 1997. |
             Rehearing Overruled Feb. 13, 1998.
                                                                      Attorneys and Law Firms
Father, in his individual capacity and as his children's
next friend, sued various parties for intentional infliction of       *615 Jaay D. Neal, San Antonio, for Petitioners.
emotional distress and negligent interference with familial
relationships. After father nonsuited one defendant, the              Edward C. Mainz, Jr., San Antonio, Laurence E. Best, Steven
37th District Court, Bexar County, David Peeples, J.,                 D. Naumann, Houston, for Respondents.
granted summary judgment for remaining defendants. Father
appealed. The Beaumont Court of Appeals, 928 S.W.2d 654,              Opinion
dismissed appeal for want of jurisdiction. Application for
                                                                      SPECTOR, J., Justice, delivered the opinion of the Court,
writ of error was filed. The Supreme Court, Spector, J.,
                                                                      in which PHILLIPS, Chief Justice, GONZALEZ, HECHTS,
held that motion for extension of time to file cost bond is
                                                                      and OWEN, Justices, join.
necessarily implied when appellant, acting in good faith, files
bond beyond time allowed by rule but within 15-day period             In this case, we decide whether the court of appeals erred in
in which appellant would be entitled to move to extend filing         dismissing an appeal for want of jurisdiction. The appellant,
deadline.                                                             John Verburgt, filed a cost bond on the thirty-fourth day
                                                                      after the trial court rendered judgment against him. Verburgt
Judgment of Court of Appeals reversed and remanded.                   mistakenly believed that he had timely complied with Rule
                                                                      41(a)(1) of the Rules of Appellate Procedure in filing the bond
Enoch, J., filed a dissenting opinion in which Abbott and             and did not concurrently move to extend the time to file under
Hankinson, JJ., joined.                                               Rule 41(a)(2). 1 We hold that a motion for extension of time
                                                                      is implied when a party, acting good faith, files a cost bond
Baker, J., filed a dissenting opinion.                                within the fifteen-day period in which Rule 41(a)(2) permits
                                                                      parties to file a motion to extend. We therefore reverse the
                                                                      judgment of the court of appeals and remand to that court.
 West Headnotes (1)
                                                                      1      The Texas Rules of Appellate Procedure were
                                                                             renumbered and substantially revised on September 1,
 [1]     Appeal and Error                                                    1997. See 60 TEX. B.J. 876 (1997). All references to the
               Extension of time and relief in case of                       Rules of Appellate Procedure in this opinion are to the
         failure to file in time                                             rules in effect before that date.
          30 Appeal and Error



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    1
Verburgt v. Dorner, 959 S.W.2d 615 (1997)
41 Tex. Sup. Ct. J. 138

Verburgt, in his individual capacity and as his children's
next friend, sued Constance Clear, Patricia Dorner, and                            We are, therefore, confronted with the
the Methodist Mission Home for intentional infliction of                           question of whether the appellate rules
emotional distress and negligent interference with familial                        condone a result that allows a litigant
relationships. After Verburgt nonsuited Clear, the trial court                     who knows he is late with his bond to
granted summary judgment for the remaining defendants.                             save his appeal, but rejects the appeal
The judgment was signed on October 10, 1995. Because no                            of the litigant who erroneously, but
motion for new trial was filed, Verburgt's cost bond was                           in good faith, believes he has timely
due within thirty days, by November 9th. See TEX.R.APP.                            filed his bond and, thus satisfied, also
                                                                                   believes he has no need to file for an
P. 41(a)(1). 2 Verburgt did not file the *616 bond until
                                                                                   extension of time.
November 13th, nor did he file a motion to extend the time to
file the bond within fifteen days of the bond's due date. See         Id. Although it acknowledged the arbitrariness of dismissal
TEX.R.APP. P. 41(a)(2). 3                                             under these circumstances, the court of appeals nevertheless
                                                                      believed that the interest in finality of judgments outweighed
2      Rule 41(a)(1) provides:                                        the policy of disposing of appeals on their merits. Id. at 656.
           When security for costs on appeal is required, the
           bond or affidavit in lieu thereof shall be filed with      In dismissing Verburgt's appeal, the appellate court also relied
           the clerk within thirty days after the judgment is         largely upon a decision by the Court of Criminal Appeals,
           signed, or, within ninety days after the judgment is       Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App.1996). But
           signed if a timely motion for new trial has been filed     the Court of Criminal Appeals itself recognized in Olivo that
           by any party or if any party has timely filed a request    its approach to the perfection of appeals in criminal cases
           for findings of fact and conclusions of law in a case      has differed significantly from our more liberal approach.
           tried without a jury. If a deposit of cash is made in      See id. at 524–25; compare Jones v. State, 796 S.W.2d
           lieu of bond, the same shall be made within the same
                                                                      183, 186–87 (Tex.Crim.App.1990) (holding that Rule 83
           period.
                                                                      of the Texas Rules of Appellate Procedure did not entitle
3      Rule 41(a)(2) provides:                                        appellant who filed defective notice of appeal to amend
           An extension of time may be granted by the                 notice beyond the time allowed by Rule 41(a)(2) when the
           appellate court for late filing of a cost bond or          appellant had not requested an extension of time under Rule
           notice of appeal or making the deposit required by         41(b)(2)) with Grand Prairie Indep. Sch. Dist. v. Southern
           paragraph (a)(1) or for filing the affidavit, if such      Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991) (holding
           bond or notice of appeal is filed, deposit is made,        that an appellate court may not dismiss an appeal when the
           or affidavit is filed not later than fifteen days after    appellant filed the wrong instrument required to perfect the
           the last day allowed and, within the same period,
                                                                      appeal without giving the appellant an opportunity to correct
           a motion is filed in the appellate court reasonably
                                                                      the error).
           explaining the need for such extension. If a contest
           to an affidavit in lieu of bond is sustained, the time
           for filing the bond is extended until ten days after the
                                                                      This Court has never wavered from the principle that
           contest is sustained unless the trial court finds and      appellate courts should not dismiss an appeal for a procedural
           recites that the affidavit is not filed in good faith.     defect whenever any arguable interpretation of the Rules of
                                                                      Appellate Procedure would preserve the appeal. We have
Several weeks later, the court of appeals ordered Verburgt
                                                                      repeatedly held that a court of appeals has jurisdiction over
to show cause why it should not dismiss his appeal for
                                                                      any appeal in which the appellant files an instrument in a
lack of jurisdiction. Verburgt's response demonstrated that
                                                                      bona fide attempt to invoke the appellate court's jurisdiction.
his counsel had simply miscalculated the date the bond was
                                                                      Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex.1994);
due. See 928 S.W.2d 654, 655. Initially, the court of appeals
                                                                      Grand Prairie Indep. Sch. Dist., 813 S.W.2d at 500. Our
decided to retain jurisdiction of Verburgt's appeal. But on
                                                                      decisions reflect the policy embodied in our appellate rules
rehearing en banc, the court reversed itself.
                                                                      that disfavors disposing of appeals based upon harmless

The court of appeals in this case recognized the “patent              procedural defects. 4 See Grand Prairie Indep. Sch. Dist., 813
unfairness” of the result it reached:                                 S.W.2d at 500. Thus, we have instructed the courts of appeals
                                                                      to construe the Rules of Appellate Procedure reasonably, yet


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Verburgt v. Dorner, 959 S.W.2d 615 (1997)
41 Tex. Sup. Ct. J. 138

liberally, so that the *617 right to appeal is not lost by             5       The Texas Supreme Court cases cited by the dissenters
imposing requirements not absolutely necessary to effect the                   are distinguishable from this case. In Davies v. Massey,
purpose of a rule. See Jamar v. Patterson, 868 S.W.2d 318,                     the appellant mailed his cost bond a day before it was
319 (Tex.1993); see also Crown Life Ins. Co. v. Estate of                      due, but the bond was received eight days late. 561
Gonzalez, 820 S.W.2d 121, 121–22 (Tex.1991); Gay v. City                       S.W.2d 799, 800 (Tex.1978). We held that the appellant
of Hillsboro, 545 S.W.2d 765, 766 (Tex.1977).                                  timely perfected his appeal under Rule 5 of the Texas
                                                                               Rules of Civil Procedure. Id. at 801. It presents no
4                                                                              inconsistency with this case. Glidden Company v. Aetna
        Under Rule 46(f), on motion to dismiss an appeal for a
                                                                               Casualty & Surety Company was a 1956 case in which
        defect in form or substance in any bond, “the appellate
                                                                               the Court held that the court of appeals should have
        court may allow the filing of a new bond or the making
                                                                               dismissed an appeal in which the appellant filed its
        of a new deposit in the trial court on such terms as the
                                                                               bond one day late. 155 Tex. 591, 291 S.W.2d 315,
        appellate court may prescribe.” Rule 83 provides that
                                                                               317 (1956). At the time we decided Glidden, the rules
        “[a] judgment shall not be affirmed or reversed or an
                                                                               allowed for no extension of time to file a cost bond,
        appeal dismissed for defects or irregularities, in appellate
                                                                               regardless of good cause. See id. 291 S.W.2d at 318
        procedure, either of form or substance, without allowing
                                                                               (“It is well settled, that the requirement that the bond be
        a reasonable time to correct or amend such defects or
                                                                               filed within thirty days is mandatory and jurisdictional,
        irregularities....”
                                                                               and that the time prescribed cannot be dispensed with or
As the dissenting justice in the court of appeals pointed out,                 enlarged by the court for any reason.”). We disapprove of
the result the court of appeals reached was not “absolutely                    Miller v. Miller, 848 S.W.2d 344 (Tex.App.—Texarkana
necessary” under these facts. 928 S.W.2d at 657 (Duncan, J.,                   1993, no writ), El Paso Sharky's Billiard Parlor, Inc. v.
dissenting) (“[T]he issue is not whether the rules condone a                   Amparan, 831 S.W.2d 3 (Tex.App.—El Paso 1992, writ
patently unfair result but whether they require it.”) (emphasis                denied), and any other authorities in which the court of
in original). Here, the court of appeals acknowledged that                     appeals has dismissed an appeal when the appellant has
                                                                               made a bona fide attempt to invoke the appellate court's
Verburgt demonstrated that he had made a bona fide attempt
                                                                               jurisdiction by filing a bond within the fifteen days of the
to timely perfect an appeal. See id. at 655.
                                                                               date the bond was due.

We hold that a motion for extension of time is necessarily
implied when an appellant acting in good faith files a bond            ENOCH, Justice, joined by ABBOTT and HANKINSON,
beyond the time allowed by Rule 41(a)(1), but within the               Justices, dissenting.
fifteen-day period in which the appellant would be entitled to         From today forward, one need no longer timely appeal to
move to extend the filing deadline under Rule 41(a)(2). Our            invoke an appellate court's jurisdiction. But just two months
holding does not indefinitely extend the time in which parties         ago, this Court retained the longstanding rule that only
may perfect an appeal, as Justice Enoch implies. Instead, once
                                                                       a timely filed appeal invokes appellate jurisdiction. 1 We
the period for granting a motion for extension of time under
                                                                       insisted that to perfect appeal in a civil case, the notice of
Rule 41(a)(2) has passed, a party can no longer invoke the
                                                                       appeal must be filed within the time prescribed in the rules.
appellate court's jurisdiction. It also does not alter the time
                                                                       See TEX.R.APP. P. 26.1. Further, we insisted that to extend
for perfecting an appeal beyond the period authorized by Rule
                                                                       the time in which to file the notice of appeal, one must file
41(a). Nor does our holding undermine finality of judgments,
                                                                       not only the notice of appeal, but in addition “ a motion”
as the court of appeals believed. See 928 S.W.2d at 656.
                                                                       that “must state: ... [among other things] the facts relied on to
Parties who prevail in the trial court will still know within the
                                                                       reasonably explain the need for an extension.” TEX.R.APP.
time specified in Rule 41(a)(2) whether their opponents will
                                                                       P. 26.3, 10.5(b)(1)(C). Like our new rules, the plain language
seek to perfect an appeal. We decline to elevate form over
                                                                       of the rule that applies to this case, Rule 41(a)(2), mandates
substance, as the dissenters would.
                                                                       that the appeal be timely; consequently, it compels the result
                                                                       the court of appeals reached in this *618 case. Is this a bad
Accordingly, we reverse the judgment of the court of appeals
                                                                       result? For the hopeful appellant, perhaps (assuming that the
and remand to that court to allow it to determine whether
                                                                       appeal is, in fact, meritorious). But denuding the Court's rules
Verburgt offered a reasonable explanation for his failure to
                                                                       to achieve the Court's chosen result is bad law. I dissent.
timely file his bond. See TEX.R.APP. 41(a)(2). 5




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          3
Verburgt v. Dorner, 959 S.W.2d 615 (1997)
41 Tex. Sup. Ct. J. 138

1       In addition, we specifically stated that while other         500 (Tex.1991)); see also Olivo v. State, 918 S.W.2d 519,
        appellate rules may be suspended from time to time           524 (Tex.Crim.App.1996) (correctly noting that the “liberal
        for good cause, “an appellate court may ... not ...          policy” espoused by this Court in Linwood and Grand Prairie
        alter the time for perfecting an appeal in a civil case.”    “concerns the substitution of a correct instrument for an
        TEX.R.APP. P. 2 (emphasis added).                            incorrect instrument, which has been timely filed ”).
Rule 41(a)(2) permits a party who fails to timely appeal to
seek an extension of time. But to do so, the party has to file,      I agree with the majority that “appellate courts should not
within fifteen days of the original due date, both the cost bond     dismiss an appeal for a procedural defect whenever any
and a motion for extension of time reasonably explaining             arguable interpretation of the Rules of Appellate Procedure
the need for the extension. The majority's holding, that an          would preserve the appeal .” 959 S.W.2d at 616 (emphasis
“implicit motion” is filed if a would-be appellant files late        added)(citing Linwood and Grand Prairie ). 2 But surely that
and files only a cost bond, 959 S.W.2d at 615, simply ignores        interpretation must be arguable. Interpreting Rule 41(a)(2) in
the rule's requirement that both instruments must be filed.          contradiction to its plain language is not arguable; indeed, it
Moreover, Rule 41(a)(2) gives the court of appeals discretion        is remarkably harmful to the concept of justice.
whether to allow an extension of time, but this discretion is
triggered only by the filing of a motion reasonably explaining       2       In fact, the thrust of our new rules is to eliminate the
the need for the extension. In the absence of a motion, the                  procedural traps often encountered under our former
court of appeals' discretion is never invoked and the late–filed             rules. See Nathan L. Hecht & E. Lee Parsley, Procedural
cost bond has no effect. Here, Verburgt did not file a motion                Reform: Whence and Whither, in MATTHEW BENDER
to extend time, and he did not file the cost bond timely. He                 C.L.E. , PRACTICING LAW UNDER THE NEW
simply did not do what Rule 41(a)(2) clearly requires.                       RULES OF TRIAL AND APPELLATE PROCEDURE
                                                                             1–12 (Nov.1997) (explaining that the 1997 revisions to
The Court does not cite a single case holding that the                       the rules of appellate procedure “are meant to take the
                                                                             traps out of TRAP”). In its understandable zeal to get
untimely filing of an appeal can still be a bona fide attempt
                                                                             rid of “traps,” however, the majority unfortunately has
to invoke the court of appeals' jurisdiction. To the contrary,
                                                                             lost sight of the significant concept of timeliness as a
we have consistently and routinely held that the appeal must
                                                                             prerequisite to proper invocation of the court of appeals'
be filed timely. See Davies v. Massey, 561 S.W.2d 799,                       jurisdiction. As indicated above, even the new rules of
801 (Tex.1978) (“Filing a cost bond ... is a necessary and                   appellate procedure require, as they must, that a party
jurisdictional step in perfecting an appeal.”); Glidden Co. v.               must be timely to invoke the court of appeals' jurisdiction.
Aetna Cas. & Sur. Co., 155 Tex. 591, 291 S.W.2d 315, 318
                                                                     Under any number of circumstances, time plays a critical role
(1956) (“It is well settled ... that the requirement that the bond
                                                                     in justice. For example, statutes of limitation and repose exist
be filed within thirty days is mandatory and jurisdictional.”).
                                                                     to ensure that claims are made in a timely fashion. See, e.g.,
Indeed, the court of appeals' decision in this case is predicated
                                                                     Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259,
on this crucial point:
                                                                     263 (Tex.1994) (“We start with the unassailable premise that
             [W]hile the supreme court has                           statutes of limitation, in general, serve a public function. They
             liberally construed the rules regarding                 ‘compel the exercise of a right of action within a reasonable
             the instruments necessary to confer                     time so that the opposing party has a fair opportunity to defend
             jurisdiction, we do not discern a retreat               while witnesses *619 are available and the evidence is fresh
             in that court from the fundamental                      in their minds.’ ”) (quoting Robinson v. Weaver, 550 S.W.2d
             requirement that in order to invoke the                 18, 20 (Tex.1977)). Timely exercise of one's appellate rights
             jurisdiction of the court of appeals,                   is no less significant to predictability, and consequently, to
             some instrument, whether or not it is                   justice. Failure to timely file an appeal has always been a
             the correct instrument, must be timely                  jurisdictional error that precludes an appellate court from
             filed.                                                  reaching the merits. See Davies, 561 S.W.2d at 801; Glidden,
                                                                     291 S.W.2d at 318. It rightfully should remain so.
928 S.W.2d at 656 (explaining two decisions on which
the Court relies today: Linwood v. NCNB Texas, 885                   The majority's flawed reasoning is also apparent from the
S.W.2d 102, 103 (Tex.1994) and Grand Prairie Indep. Sch.             cases it cites. In Linwood and Grand Prairie, we held that
Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         4
Verburgt v. Dorner, 959 S.W.2d 615 (1997)
41 Tex. Sup. Ct. J. 138

                                                                               958 S.W.2d 380 (Tex.1997); Holmes v. Home State
a party's bona fide attempt to invoke the appellate court's
                                                                               County Ins., 958 S.W.2d 381 (Tex.1997); Boyd v.
jurisdiction will preserve its appeal. What is clearly apparent
                                                                               American Indem. Co., 958 S.W.2d 379 (Tex.1997)
in these opinions is that the procedural defect, which rendered
                                                                               (Justice Hankinson, who joins me in this dissent, is not
the party's effort at appeal only a bona fide attempt, was                     sitting in Boyd, and therefore joins this footnote only as
correctable. Concomitantly, the hopeful appellant had the                      it relates to Harlan and Holmes ).
obligation to correct this defect. But how would one correct
untimeliness? One can't. Neither of these cases remotely               BAKER, Justice, dissenting.
signals a retreat from the principle that a party must timely          The court of appeals reached the decision required by
appeal to invoke the court's jurisdiction.                             applying the plain and unambiguous language of Rule 41(a)
                                                                       (2). See TEX.R.APP. P. 41(a)(1) and (2); Davies v. Massey,
The majority responds to my criticism by claiming that its             561 S.W.2d 799, 801 (Tex.1978); Glidden Co. v. Aetna Cas.
decision “does not indefinitely extend the time in which               & Sur. Co., 155 Tex. 591, 291 S.W.2d 315, 318 (1956);
parties may perfect an appeal” because parties supposedly              see also Miller v. Miller, 848 S.W.2d 344, 345 (Tex.App.—
“will still know within the time specified in Rule 41(a)(2)            Texarkana 1993, no writ); El Paso Sharky's Billiard Parlor,
whether their opponents will seek to perfect an appeal.” 659           Inc. v. Amparan, 831 S.W.2d 3, 5 (Tex.App.—El Paso 1992,
S.W.2d at 617. My colleagues demonstrate that they do not              writ denied).
understand what they do. The “indefiniteness” has nothing to
do with not knowing whether an appeal will be filed within             The Court's opinion dispenses with Rule 41(a)(2)'s
thirty days or forty-five days. It has everything to do with not       requirements, and amends the rule by judicial fiat. The Court's
knowing when the Court will simply “imply” a condition that            opinion is contrary to its own precedent. See State Dept. of
never occurred to reach the result it prefers. When next will          Highways & Public Transportation v. Payne, 838 S.W.2d
the Court “imply” filings that were never made? If the clear           235, 241 (Tex.1992)( “[W]e do not revise our rules by
language of its own rules does not constrain the Court, then           opinion.”); Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915
what will? If this is not “indefinite,” then perhaps I do not
                                                                       (Tex.1992)(same). I would deny the writ 1 . Because the Court
understand the meaning of the word.
                                                                       decides otherwise, I dissent.

Finally, the majority mistakenly believes that ignoring its own
                                                                       1       I also dissent to Verburgt's companion cases. See Boyd
rules somehow enhances “fairness.” Playing by the rules is
fair. Changing the rules to produce a particular result is not.                v. American Indem. Co., 958 S.W.2d 379 (Tex.1997);
                                                                               Harlan v. Howe State Bank, 958 S.W.2d 380 (Tex.1997);
                                                                               Holmes v. Home State County Ins., 958 S.W.2d 381
The judgment of the court of appeals should be affirmed. I
                                                                               (Tex.1997).
dissent. 3
                                                                       All Citations
3       Like Justice Baker, I also dissent to Verburgt's
        companion cases. See Harlan v. Howe State Bank,                959 S.W.2d 615, 41 Tex. Sup. Ct. J. 138


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.                                                         5
§ 22.004. Rules of Civil Procedure, TX GOVT § 22.004




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle A. Courts
           Chapter 22. Appellate Courts
              Subchapter A. Supreme Court

                                             V.T.C.A., Government Code § 22.004

                                               § 22.004. Rules of Civil Procedure

                                                  Effective: September 1, 2011
                                                          Currentness


(a) The supreme court has the full rulemaking power in the practice and procedure in civil actions, except that its rules may not
abridge, enlarge, or modify the substantive rights of a litigant.


(b) The supreme court from time to time may promulgate a specific rule or rules of civil procedure, or an amendment or
amendments to a specific rule or rules, to be effective at the time the supreme court deems expedient in the interest of a proper
administration of justice. The rules and amendments to rules remain in effect unless and until disapproved by the legislature.
The clerk of the supreme court shall file with the secretary of state the rules or amendments to rules promulgated by the supreme
court under this subsection and shall mail a copy of those rules or amendments to rules to each registered member of the State
Bar of Texas not later than the 60th day before the date on which they become effective. On receiving a written request from a
member of the legislature, the secretary of state shall provide the member with electronic notifications when the supreme court
has promulgated rules or amendments to rules under this section.


(c) So that the supreme court has full rulemaking power in civil actions, a rule adopted by the supreme court repeals all
conflicting laws and parts of laws governing practice and procedure in civil actions, but substantive law is not repealed. At
the time the supreme court files a rule, the court shall file with the secretary of state a list of each article or section of general
law or each part of an article or section of general law that is repealed or modified in any way. The list has the same weight
and effect as a decision of the court.


(d) The rules of practice and procedure in civil actions shall be published in the official reports of the supreme court. The
supreme court may adopt the method it deems expedient for the printing and distribution of the rules.


(e) This section does not affect the repeal of statutes repealed by Chapter 25, page 201, General Laws, Acts of the 46th
Legislature, Regular Session, 1939, on September 1, 1941.


(f) The supreme court shall adopt rules governing the electronic filing of documents in civil cases in justice of the peace courts.


(g) The supreme court shall adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on
motion and without evidence. The rules shall provide that the motion to dismiss shall be granted or denied within 45 days of
the filing of the motion to dismiss. The rules shall not apply to actions under the Family Code.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
§ 22.004. Rules of Civil Procedure, TX GOVT § 22.004




(h) The supreme court shall adopt rules to promote the prompt, efficient, and cost-effective resolution of civil actions. The
rules shall apply to civil actions in district courts, county courts at law, and statutory probate courts in which the amount in
controversy, inclusive of all claims for damages of any kind, whether actual or exemplary, a penalty, attorney's fees, expenses,
costs, interest, or any other type of damage of any kind, does not exceed $100,000. The rules shall address the need for lowering
discovery costs in these actions and the procedure for ensuring that these actions will be expedited in the civil justice system.
The supreme court may not adopt rules under this subsection that conflict with a provision of:


  (1) Chapter 74, Civil Practice and Remedies Code;


  (2) the Family Code;


  (3) the Property Code; or


  (4) the Tax Code.


Credits
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 297, § 1, eff. Aug. 28, 1989; Acts
2001, 77th Leg., ch. 644, § 1, eff. June 13, 2001; Acts 2007, 80th Leg., ch. 63, § 1, eff. May 11, 2007; Acts 2011, 82nd Leg.,
ch. 203 (H.B. 274), §§ 1.01, 2.01, eff. Sept. 1, 2011; Acts 2011, 82nd Leg., ch. 906 (S.B. 791), § 1, eff. Sept. 1, 2011.


V. T. C. A., Government Code § 22.004, TX GOVT § 22.004
Current through the end of the 2015 Regular Session of the 84th 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.                                                  2
§ 21.049. Notice of Decision of Special Commissioners, TX PROPERTY § 21.049




  Vernon's Texas Statutes and Codes Annotated
    Property Code (Refs & Annos)
      Title 4. Actions and Remedies
        Chapter 21. Eminent Domain (Refs & Annos)
           Subchapter C. Damages and Costs (Refs & Annos)

                                                V.T.C.A., Property Code § 21.049

                                   § 21.049. Notice of Decision of Special Commissioners

                                                            Currentness


The judge of a court hearing a proceeding under this chapter shall inform the clerk of the court as to a decision by the special
commissioners on the day the decision is filed or on the next working day after the day the decision is filed. Not later than the
next working day after the day the decision is filed, the clerk shall send notice of the decision by certified or registered United
States mail, return receipt requested, to the parties in the proceeding, or to their attorneys of record, at their addresses of record.


Credits
Added by Acts 1984, 68th Leg., 2nd C.S., ch. 18, § 1(d), eff. Oct. 2, 1984.


V. T. C. A., Property Code § 21.049, TX PROPERTY § 21.049
Current through the end of the 2015 Regular Session of the 84th 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
Rule 11. Agreements To Be in Writing, TX R RCP Rule 11




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part I. General Rules (Refs & Annos)

                                           TX Rules of Civil Procedure, Rule 11

                                          Rule 11. Agreements To Be in Writing

                                                        Currentness


Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced
unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered
of record.


Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by order of July 15, 1987, eff. Jan. 1, 1988.


Vernon's Ann. Texas Rules Civ. Proc., Rule 11, TX R RCP Rule 11
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through
September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration
are current with amendments received through September 1, 2015. Other state court rules and selected county rules are current
with rules verified through June 1, 2015.

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
Docket Style and Number: Application of Sharyland Utilities, L.P. to        d. submit a copy of the order for publication in the Texas Register.
Amend its Certificate of Convenience and Necessity for the Proposed
                                                                            3. These forms may be changed in response to comments received on
Antelope-Elk Energy Center to White River 345-kV Transmission Line
                                                                            or before January 31, 2014. Any interested party may submit writ-
in Hale and Floyd Counties, Docket Number 42063.
                                                                            ten comments to Martha Newton, Rules Attorney, at P.O. Box 12248,
The Application: The application of Sharyland Utilities, L.P. is desig-     Austin, TX 78711, or rulescomments@txcourts.gov.
nated as the Antelope-Elk Energy Center to White River 345-kV Trans-
                                                                            Dated: December 12, 2013
mission Line Project. The facilities include construction of a new sin-
gle circuit 345-kV line on double-circuit capable structures. The pro-      ________________________________________
posed transmission line will connect the Golden Spread Electric Co-
                                                                            Nathan L. Hecht, Chief Justice
operative, Inc. Antelope-Elk Energy Center, in Hale County, to Shary-
land's proposed White River Station in Floyd County. The total esti-        __________________________________________
mated cost for the project ranges from approximately $142,167,000 to
                                                                            Paul W. Green, Justice
$158,120,000 depending on the route chosen.
                                                                            __________________________________________
The proposed project is presented with twenty-one (21) alternate routes
and is estimated to range from 50.42 miles to 57.86 miles (approxi-         Phil Johnson, Justice
mately 55 miles) in length. Any of the routes or route segments pre-
                                                                            __________________________________________
sented in the application could, however, be approved by the commis-
sion.                                                                       Don R. Willett, Justice
Persons wishing to intervene or comment on the action sought should         __________________________________________
contact the Public Utility Commission of Texas by mail at P.O. Box
                                                                            Eva M. Guzman, Justice
13326, Austin, Texas 78711-3326 or by phone at (512) 936-7120 or
toll-free at (888) 782-8477. The deadline for intervention in this pro-     __________________________________________
ceeding is January 27, 2014. Hearing and speech-impaired individuals
                                                                            Debra H. Lehrmann, Justice
with text telephones (TTY) may contact the commission through Relay
Texas by dialing 7-1-1. All comments should reference Docket Num-           __________________________________________
ber 42063.
                                                                            Jeffrey S. Boyd, Justice
TRD-201305970
                                                                            _________________________________________
Adriana A. Gonzales
Rules Coordinator                                                           John P. Devine, Justice
Public Utility Commission of Texas                                          _________________________________________
Filed: December 16, 2013
                                                                            Jeffrey V. Brown, Justice
                      ♦            ♦             ♦
Supreme Court of Texas
                                                                            TRD-201305907
IN THE SUPREME COURT OF TEXAS                                               Martha Newton
(Editor's Note: On December 12, 2013, the Supreme Court of Texas            Rules Attorney
filed Misc. Docket No. 13-9171, Order Approving Forms for Expedited         Supreme Court of Texas
Foreclosure Proceedings, in the Texas Register office. In accordance        Filed: December 12, 2013
with Texas Government Code, §2002.014, which permits the omission
of material which is "cumbersome, expensive, or otherwise inexpedi-
                                                                                                    ♦         ♦            ♦
ent," the forms are not included in the print version of the Texas Regis-   Orders Adopting Amendments to Texas Rules of Civil
ter. The forms are available in the on-line version of the December 27,     Procedure, Texas Rules of Appellate Procedure, and the Form
2013, issue of the Texas Register.)                                         of the Appellate Record
Misc. Docket No. 13-9171                                                    (Editor's Note: On December 13, 2013, the Supreme Court of Texas
ORDER APPROVING FORMS FOR EXPEDITED FORECLOSURE                             filed Misc. Docket No. 13-9165, Order Adopting Texas Rule of Civil
PROCEEDINGS                                                                 Procedure 21c and Amendments to Texas Rules of Civil Procedure 4,
                                                                            21, 21a, 45, 57, and 502; Texas Rules of Appellate Procedure 6, 9,
ORDERED that:                                                               and 48; and the Supreme Court Order Directing the Form of the Ap-
1. Pursuant to the Act of May 27, 2013, 83rd Leg., R.S. (HB 2978) and       pellate Record, in the Texas Register office. In accordance with Texas
section 22.018 of the Texas Government Code, the Supreme Court of           Government Code, §2002.014, which permits the omission of material
Texas approves the following set of forms for use in expedited foreclo-     which is "cumbersome, expensive, or otherwise inexpedient," the rules
sure proceedings under Texas Rule of Civil Procedure 736.                   are not included in the print version of the Texas Register. The rules
                                                                            are available in the on-line version of the December 27, 2013, issue of
2. The Clerk is directed to:                                                the Texas Register.)
a. file a copy of this order with the Secretary of State;                   IN THE SUPREME COURT OF TEXAS
b. cause a copy of this order to be mailed to each registered member of     Misc. Docket No. 13-9165
the State Bar of Texas by publication in the Texas Bar Journal;
                                                                            ORDER ADOPTING TEXAS RULE OF CIVIL PROCEDURE 21c
c. send a copy of this order to each elected member of the Legislature;     AND AMENDMENTS TO TEXAS RULES OF CIVIL PROCEDURE
and



                                                                       IN ADDITION            December 27, 2013 38 TexReg 9683
4, 21, 21a, 45, 57, AND 502; TEXAS RULES OF APPELLATE PRO-                   John P. Devine, Justice
CEDURE 6, 9, AND 48; AND THE SUPREME COURT ORDER DI-
                                                                             ___________________________
RECTING THE FORM OF THE APPELLATE RECORD
                                                                             Jeffrey V. Brown, Justice
ORDERED that:
                                                                             IN THE COURT OF CRIMINAL APPEALS
1. Pursuant to section 22.004 of the Texas Government Code, and in
accordance with Misc. Docket No. 12-9206, as amended by Misc.                Misc. Docket No. 13-003
Docket Nos. 13-9092 and 13-9164, Order Requiring Electronic Filing
                                                                             ORDER ADOPTING AMENDMENTS TO THE TEXAS RULES OF
in Certain Courts, the Supreme Court of Texas adopts Rule of Civil
                                                                             APPELLATE PROCEDURE
Procedure 21c and amends Rules of Civil Procedure 4, 21, 21a, 45, 57,
and 502 and Rules of Appellate Procedure 6, 9, and 48.                       ORDERED that:
2. Pursuant to Texas Rule of Appellate Procedure 34.4, the Supreme           1. Pursuant to section 22.108 of the Texas Government Code, the Court
Court orders that the appellate record be in the form attached as Ap-        of Criminal Appeals amends Rules of Appellate Procedure 6, 9, 37,
pendix C.                                                                    48, 68, 70, 71, and 73, Appendix C, Appendix F: Application for a
                                                                             Writ of Habeas Corpus and Appendix G; Appendix E: Order Directing
3. By order dated August 16, 2013, in Misc. Docket No. 13-9128,
                                                                             the Form of the Appellate Record in Criminal Cases and Appendix H:
the Court proposed the adoption of Rule of Civil Procedure 21c and
                                                                             Order Regarding Court of Appeals Clerk Preparing Record to Send to
amendments to Rules of Civil Procedure 4, 21, 21a, and 502; Rules of
                                                                             the Court of Criminal Appeals is repealed, effective January 1, 2014.
Appellate Procedure 6 and 9; and Appendix C to the Rules of Appellate
Procedure. The Court also invited public comment. Following public           2. Pursuant to Texas Rule of Appellate Procedure 34.4, the Court of
comment, the Court made revisions to the rules and to the appendix.          Criminal Appeals orders that the appellate record be in the form at-
This order incorporates those revisions and contains the final version       tached as Appendix C.
of the rules and appendix, effective January 1, 2014.
                                                                             3. By order dated September 18, 2013, in Misc. Docket No. 13-2, the
4. These rules supersede all local rules and templates on electronic fil-    Court proposed the adoption of Rules of Appellate Procedure 6, 9, 68,
ing, including all county and district court local rules based on e-filing   and 73, the Appendix: Application for Writ of Habeas Corpus; Rule
templates; the justice court e-filing rules, approved in Misc. Docket        34.4 and Appendix C; and Appendix G. The Court also invited public
No. 07-9200; the Supreme Court e-filing rules, approved in Misc.             comment. Following public comment, the Court made revisions to the
Docket No. 11-9152; the appellate e-filing templates, approved in            rules and to the appendix. This order incorporates those revisions and
Misc. Docket 11-9118; and local rules of courts of appeals based on          contains the final version of the rules and appendix, effective January
those templates.                                                             1, 2014.
5. The Clerk is directed to:                                                 4. These rules supersede all local rules of the courts of appeals on
                                                                             electronic filing.
a. file a copy of this order with the Secretary of State;
                                                                             5. The Clerk is directed to:
b. cause a copy of this order to be mailed to each registered member of
the State Bar of Texas by publication in the Texas Bar Journal;              a. file a copy of this order with the Secretary of State;
c. send a copy of this order to each elected member of the Legislature;      b. cause a copy of this order to be mailed to each registered member of
and                                                                          the State Bar of Texas by publication in the Texas Bar Journal;
d. submit a copy of the order for publication in the Texas Register.         c. send a copy of this order to each elected member of the Legislature;
                                                                             and
Dated: December 13th, 2013.
                                                                             d. submit a copy of the order for publication in the Texas Register.
___________________________
                                                                             SIGNED AND ENTERED this 11th day of December, 2013.
Nathan L. Hecht, Chief Justice
                                                                             Sharon Keller, Presiding Judge
___________________________
                                                                             _________________________
Paul W. Green, Justice
                                                                             Michael Keasler, Judge
___________________________
                                                                             _________________________
Phil Johnson, Justice
                                                                             Lawrence E. Meyers, Judge
___________________________
                                                                             _________________________
Don R. Willett, Justice
                                                                             Barbara Hervey, Judge
___________________________
                                                                             _________________________
Eva M. Guzman, Justice
                                                                             Tom Price, Judge
___________________________
                                                                             _________________________
Debra H. Lehrmann, Justice
                                                                             Cathy Cochran, Judge
___________________________
                                                                             _________________________
Jeffrey S. Boyd, Justice
                                                                             Paul Womack, Judge
___________________________




38 TexReg 9684 December 27, 2013                            Texas Register
