      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00747-CV



      Stephen B. Tyler, Criminal District Attorney Victoria County, Texas, Appellant

                                                 v.

                       Ken Paxton, Attorney General of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
         NO. D-1-GN-09-003476, HONORABLE TIM SULAK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Stephen B. Tyler, Criminal District Attorney of Victoria County, Texas (the DA)

appeals from the trial court’s determination upholding the ruling of the Attorney General of Texas,1

(the AG) that documents the DA sought to withhold from public disclosure under the Public

Information Act (PIA or the Act) as confidential attorney-client communications and work product

are not excepted from disclosure under any exception in the PIA and must be disclosed. Faced with

competing motions for summary judgment, the trial court denied the DA’s motion and granted the

AG’s motion, ordering that the information is not excepted from disclosure. For the reasons that

follow, we affirm the trial court’s denial of the DA’s motion for summary judgment and reverse the

trial court’s grant of the AG’s motion for summary judgment.


       1
           At the time of the ruling, Greg Abbott was the Attorney General of Texas. Abbott’s
successor, Ken Paxton, has been automatically substituted as a party defendant. See Tex. R. Civ.
P. 7.2(a).
                     FACTUAL AND PROCEDURAL BACKGROUND

               On June 5, 2010, the DA received a PIA request from Richard Wetzel for information

related to services rendered or to be rendered to the DA’s office by certain specified attorneys. The

DA assigned assistant district attorney Michael Kelly to review the request and file an appropriate

response. The DA maintains that on Friday, June 19, 2009, Kelly called Wetzel to clarify the request

and on that same date,2 seeking to exclude certain documents from the DA’s response to the request,

Kelly sought an opinion from the AG’s office as to whether the specified documents were subject

to public disclosure or whether the DA was correct in believing the documents were protected from

disclosure. See Tex. Gov’t Code §§ 552.021 (requiring disclosure of public information), .301(a)

(requiring recipient of request who believes exception applies to ask for decision from attorney

general determining whether agency is required to disclose the information). For what the DA calls

“reasons unknown,” the DA’s letter requesting an attorney general’s opinion was postmarked

Monday, June 22, 2009, rather than Friday, June 19, 2009.

               On June 26, 2009, the DA submitted to the AG a copy of the request, written

comments stating why certain exceptions applied, and representative samples of the information

requested. See id. § 552.301(e). Relevant to this appeal, the DA sought to withhold documents as

protected by the attorney-client and work product privileges and invoked sections 552.101, 552.103,

and 552.107 of the PIA. See id. §§ 552.101 (exempting information deemed confidential by




       2
           The AG challenges whether this statement of fact is properly before us on the ground that
it is not supported by the summary judgment evidence. However, because it is not dispositive we
recite it as part of the statement of facts.

                                                 2
constitutional law, statutory law, or judicial decision), .103 (exempting information about litigation

or settlement negotiations involving a governmental entity and incorporating the attorney work

product privilege), .107(1) (permitting governmental bodies to assert attorney-client privilege found

in Rules of Evidence and Disciplinary Rules of Professional Conduct).

               In Letter Opinion OR2009-12873, the AG did not dispute that the information at issue

was protected by the attorney-client or work product privileges but concluded that because the DA

had failed to comply with the deadline under the Act for requesting an attorney general’s opinion

within ten business days of receiving the request, he was required to demonstrate a compelling

reason to withhold the information. See id. §§ 552.301(b) (requiring governmental body to seek

attorney general’s opinion no later than 10th business day after receiving written request), .302

(providing that when governmental body does not request attorney general’s decision within

statutory deadline, information is presumed public and must be released unless there is “compelling

reason” to withhold). The AG further concluded that because sections 552.103 and 552.107 are

discretionary exceptions that may be waived, they do not constitute compelling reasons, and the DA

had waived his claims under those sections by failing to comply with the procedural requirements

of section 552.301(b) or demonstrate a compelling reason.3 Finally, the AG concluded that section

552.101 can provide a compelling reason but did not consider the DA’s claimed exceptions for

attorney-client and work product privileges under section 552.101.




       3
         In his request for an attorney general’s opinion, the DA offered no basis as a compelling
reason other than the attorney-client and work product privileges.

                                                  3
               The DA sought declaratory relief from the AG’s ruling, asserting, relevant to this

appeal, that the information is protected by Texas Rule of Evidence 503, Texas Rule of Professional

Conduct 1.05, and Texas Rule of Civil Procedure 192.5. See id. § 552.324 (governmental body may

file suit for declaratory relief against attorney general seeking to withhold information). The parties

filed cross-motions for summary judgment. The trial court denied the DA’s motion and granted the

AG’s motion, ordering that the information is not excepted from disclosure. This appeal followed.


                                       APPLICABLE LAW

The Public Information Act

               The purpose of the PIA is to provide public access “at all times to complete

information about the affairs of government and the official acts of public officials and employees.”

Tex. Gov’t Code § 552.001.         “The Act mandates a liberal construction to implement this

policy and one favoring a request for information.” See City of Garland v. Dallas Morning News,

22 S.W.3d 351, 356 (Tex. 2000). Upon receiving a request for information, a governmental body’s

public information officer must promptly produce public information for inspection, duplication, or

both. Tex. Gov’t Code § 552.221(a). Certain information is specifically excepted from required

disclosure. Id. §§ 552.101–.154.

               If a governmental body believes the requested information is excepted from

disclosure, and if there has been no previous determination on the subject, the Act requires the

governmental body to state the exceptions it believes apply and request an opinion from the attorney

general not later than the tenth day after receiving the request. Id. § 552.301; City of Garland,

22 S.W.3d at 356. If the governmental body does not timely request an attorney general’s opinion,

                                                  4
the information is presumed public and must be released unless there is a compelling reason to

withhold it. Tex. Gov’t Code § 552.302; City of Dallas v. Abbott, 304 S.W.3d 380, 381 (Tex. 2010).

If the attorney general rules that the PIA does not exempt the information from disclosure or that a

governmental body that has failed to timely request an opinion has not demonstrated a compelling

reason to withhold the information, the public information officer must make it available to the

requesting party or seek a judicial determination that the information does not have to be disclosed.

Tex. Gov’t Code §§ 552.302, .324; City of Garland, 22 S.W.3d at 356. The governmental body has

the burden of proving in a judicial proceeding that an exception to disclosure applies. City of San

Antonio v. Abbott, 432 S.W.3d 429, 431 (Tex. App.—Austin 2014, pet. filed).


Standard of Review

               We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). When the trial court does not specify the grounds for granting

the motion, we must uphold the judgment if any of the grounds asserted in the motion and preserved

for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,

216 (Tex. 2003). When both parties move for summary judgment, each party bears the burden of

establishing that it is entitled to judgment as a matter of law. City of Garland, 22 S.W.3d at 356;

Abbott v. Dallas Area Rapid Transit, 410 S.W.3d 876, 879 (Tex. App.—Austin 2013, no pet.).

Neither party can prevail because of the other’s failure to discharge its burden. Nexstar Broad., Inc.

v. Fidelity Commc’ns Co., 376 S.W.3d 377, 381 (Tex. App.—Dallas 2012, no pet.). When both

parties move for summary judgment on the same issues and the trial court grants one motion and

denies the other, we consider the summary judgment evidence presented by both sides, determine

                                                  5
all questions presented and, if we determine that the trial court erred, render the judgment the trial

court should have rendered. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)

(citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000)).

               The DA’s issues require us to construe the PIA. In general, matters of statutory

construction are questions of law that we review de novo. See Railroad Comm’n of Tex. v. Texas

Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). “Specifically, whether

information is subject to the [PIA] and whether an exception to disclosure applies to the information

are questions of law.” City of Garland, 22 S.W.3d at 357. Our primary concern is the express

statutory language. See Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.

2009). We apply the plain meaning of the text unless a different meaning is supplied by legislative

definition or is apparent from the context or the plain meaning leads to absurd results. Marks v. St.

Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010). “We generally avoid construing

individual provisions of a statute in isolation from the statute as a whole[,]” Texas Citizens,

336 S.W.3d at 628, we must consider a provision’s role in the broader statutory scheme, see

20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008), and we presume that “the entire statute is

intended to be effective[,]” Tex. Gov’t Code § 311.021(2). “Construction of a statute must be

consistent with its underlying purpose and the policies it promotes.” Northwestern Nat’l Cnty. Mut.

Ins. Co. v. Rodriguez, 18 S.W.3d 718, 721 (Tex. App.—San Antonio 2000, pet. denied).




                                                  6
                                          DISCUSSION

Good Faith Defense

               In his first issue, the DA asks this Court to imply a good faith defense to his failure

to meet the strict requirement of section 552.301(b). He relies on summary judgment evidence that

he ordered Kelly to comply with the requirements of the Act and did not knowingly or intentionally

waive the attorney-client and work product privileges. He points outs that the letter requesting an

attorney general’s opinion was dated timely, which he contends proves that the postmark dated the

following business day was inadvertent. He further contends that because he met the deadline in

section 552.301(e) to provide the AG with comments and representative samples of the information

sought to be withheld, the AG was not delayed in processing his request and, accordingly, there was

no harm. Thus, the DA argues that because he acted in objective good faith to comply with the

requirements of section 552.301 and because there was no delay in processing his request and no

harm caused by the inadvertent lateness by one business day, it would be an irrational interpretation

to conclude that he did not timely request an attorney general’s opinion and would cause an unjust

and unreasonable result. From a policy standpoint, the DA argues that applying a good faith defense

to the section 552.301(b) deadline would not remove a governmental body’s incentive to timely

request a ruling because a good faith defense requires proof of diligence.

               The AG argues that there is no good faith defense in the plain language of the statute.

Under the PIA, a request is timely if it is sent by U.S. mail or common or contract carrier and if

(1) it bears a timely postmark or receipt mark or (2) the person required to submit the request

provides satisfactory proof that it was timely deposited in the mail or with a carrier. Tex. Gov’t



                                                 7
Code § 552.308(a). Thus, the AG argues, the statute does not define timeliness based on a finding

of good faith. He contends that if the legislature had intended to provide flexibility in the deadline,

it could have used such language as “within a reasonable time,” “substantial compliance,” “harmless

error,” or “due diligence.” See, e.g., id. § 552.221(a) (“‘promptly’ [produce] means as soon as

possible under the circumstances, that is, within a reasonable time without delay”). According to

the AG, the legislature chose instead to establish mandatory deadlines for compliance with the

PIA’s procedures.

               Relying on the plain language of section 552.301(b) and construing the Act as a

whole, we decline to read into section 552.3-1(b) a good faith defense to a governmental body’s

failure to meet the deadline contained in section 552.301(b). See Texas Citizens, 336 S.W.3d at 628;

Marks, 319 S.W.3d at 663; Pochucha, 290 S.W.3d at 867. Section 552.301(b) does not expressly

include a “good faith” defense for failure to comply with the deadline or contain any similar

language by which we might reasonably infer such a standard. See Tex. Gov’t Code § 552.301(b).

Nor are we persuaded by the DA’s argument, relying on City of Dallas, 304 S.W.3d 380, that the

supreme court is “moving toward greater reliance on using good faith in evaluating open records

cases.” In City of Dallas, the supreme court addressed the effect that a request for clarification of

a request under the PIA has on the ten-day deadline in section 552.301(b). See id. at 381; Tex. Gov’t

Code § 552.222. Because the Act is silent as to the effect of request for clarification, the supreme

court construed the PIA as a whole and held that when a governmental body acting in good faith

requests clarification, the ten-day period to request an attorney general’s opinion is measured from

the date the request is clarified. See City of Dallas, 304 S.W.3d at 381, 384. We decline to extend



                                                  8
 the good faith analysis applied in City of Dallas to the express mandatory deadline under section

 552.301(b) where the DA concedes he did not meet the unambiguous deadline and where there is

 no evidence of any written or oral request for clarification from Wetzel. See Tex. Gov’t Code

 § 552.301(b); Pochucha, 290 S.W.3d at 867. We overrule the DA’s first issue.


 Attorney-Client and Work Product Privilege Information

               In his second and third issues, the DA argues in the alternative that even if we conclude

there is no good faith defense to his failure to meet the statutory deadline, the trial court erred in

finding that the attorney-client and work product privileges are not intrinsically compelling reasons

for withholding the information under section 552.302. However, the DA did not assert these

arguments as a ground for summary judgment. As movant, the DA had the burden to show that an

exception applies. See City of San Antonio, 432 S.W.3d at 431. He also had to prove that he timely

filed a request for an attorney general’s opinion or that, even though his request was untimely, there

is a compelling reason to withhold the information. See Tex. Gov’t Code §§ 552.301(b), .302. He did

neither. In his motion for summary judgment, the DA merely asserted that his request was timely and

that the privileges apply to the information. However, his own summary judgment evidence

established that the request was untimely, and as discussed above, we decline to infer a good faith

defense to a late request. Having failed to meet the deadline in section 552.301(b), the DA had the

burden under the express provisions of the PIA to demonstrate a compelling reason for withholding

the information. See id. § 552.301(b), .302; Pochucha, 290 S.W.3d at 867.

               Taking the position that his request was timely, the DA argued only that the information

was protected by the privileges but not that the privileges themselves—or any other basis—constituted

                                                  9
a compelling reason for withholding the information. He did not even address the requirement to

demonstrate a compelling reason to withhold the information. “[A]n appellate court cannot ‘read

between the lines, infer or glean from the pleadings or the proof’ any grounds for granting the

summary judgment other than those grounds expressly set forth before the trial court [in the motion

for summary judgment].” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993).

Having failed to address the compelling reason requirement of section 552.302, the DA failed to meet

his summary judgment burden to prove that he was entitled to judgment as a matter of law, and the

trial court, therefore, did not err in denying his motion for summary judgment. See Tex. Gov’t Code

§ 552.302; Texas Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 50 (Tex. 2002) (explaining that party did

not meet summary judgment burden where it did not assert or prove facts necessary to establish claim);

Besing v. Smith, 843 S.W.2d 20, 22 (Tex. 1992) (providing that plaintiff who failed to plead any date

of judgment failed to meet summary judgment burden of establishing when limitation period began);

Whittington v. City of Austin, 174 S.W.3d 889, 905–06 (Tex. App.—Austin 2005, pet. denied)

(concluding that city failed to meet summary judgment burden where it submitted no evidence of

element of claim).

               The DA’s failure to affirmatively demonstrate a compelling reason, however, does not

necessarily establish that the trial court was correct in granting the AG’s motion for summary

judgment. See Nexstar Broad., 376 S.W.3d at 381. In his motion for summary judgment, the AG

argued that the DA “cannot demonstrate a compelling reason” and sought judgment that “as a matter

of law, the District Attorney does not have a compelling reason to withhold the information.” We




                                                 10
conclude that the AG has not established as a matter of law that the exceptions asserted by the DA

cannot be proven to be compelling reasons.

               In his request for an attorney general’s opinion, the DA asserted the attorney-client

privilege under sections 552.101 and 552.107(1) of the PIA.4 See id. §§ 552.101 (exempting

information deemed confidential by constitutional law, statutory law, or judicial decision), .107(1)

(permitting governmental bodies to assert attorney-client privilege found in Rules of Evidence and

Disciplinary Rules of Professional Conduct). The DA cited Rule of Evidence 503 and Disciplinary

Rule of Professional Conduct 1.05(b) as bases for withholding the information under sections 552.101

and 552.107(1). See Tex. R. Evid. 503; Tex. Disciplinary Rules Prof’l Conduct R. 1.05(b), reprinted

in Tex. Gov’t Code, tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9). The DA also asserted the

work product privilege through Rule of Civil Procedure 192.5 and claimed exemption under sections

52.101 and 552.103 of the PIA. See Tex. Gov’t Code §§ 552.101, .103; Tex. R. Civ. P. 192.5; City

of Garland, 22 S.W.3d at 360 n.5(“Section 552.103 of the Act, which exempts information about

litigation or settlement negotiations involving a governmental entity, incorporates the attorney work

product privilege.”).

               The AG has long taken the position that section 552.101 does not encompass discovery

privileges because they are discretionary,5 see Tex. Att’y Gen. Op. OR2002-676; Tex. Att’y Gen.

         4
           Although the DA’s letter refers only to section 552.107, subsection (1) is the only
 applicable provision in section 552.107. See Tex. Gov’t Code § 552.107(1), (2).
         5
           For a discussion of a similar argument concerning “discretionary” and “mandatory”
 exceptions under the PIA, see Abbott v. City of Dallas, ___ S.W.3d ___, No. 03-13-00686-CV,
 2014 Tex. App. LEXIS 13734, at *8–10 (Tex. App. —Austin Dec. 23, 2014, no pet. h). In short,
 the AG argues that only those exceptions that expressly use the word “confidential” are mandatory,
 cannot be waived, and can constitute compelling reasons while all others are discretionary, may be

                                                  11
Op. OR2010-8285, and therefore addresses the DA’s claimed exceptions for the attorney-client and

work product privileges only under sections 552.103 and 552.107(1).6 However, this Court recently

held that attorney-client information falls within the purview of section 552.101 and that a

governmental body can demonstrate a compelling reason to withhold the information by establishing

that it was protected by the attorney-client privilege and is therefore excepted by section 552.101. See

Abbott v. City of Dallas, ___ S.W.3d ___, No. 03-13-00686-CV, 2014 Tex. App. LEXIS 13734, at

*17–18 (Tex. App. —Austin Dec. 23, 2014, no pet. h). Therefore, for the reasons stated in Abbott, we

conclude that section 552.101 exempts from disclosure information that is protected by the

attorney-client privilege and that the AG has failed to establish as a matter of law that the DA cannot

demonstrate a compelling reason to withhold the information by establishing that it was protected by

the attorney-client privilege and is therefore excepted by section 552.101.7 See id.; see also In re City

of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001); City of Garland, 22 S.W.3d at 360 n.5.

               Accordingly, we conclude that neither party is entitled to summary judgment. See City

of Garland, 22 S.W.3d at 356; Nexstar Broad., 376 S.W.3d at 381. Because our determination as to


 waived, and cannot constitute compelling reasons.
         6
          The AG takes the position that because those sections are discretionary, cannot be waived,
 and cannot constitute compelling reasons, a governmental body that misses the deadline under
 section 552.301(b) cannot merely assert the attorney-client or work product privileges exception but
 must demonstrate an independent compelling reason to withhold the information. See, e.g., Tex.
 Att’y Gen. OR2002-676 (deciding that compelling reason exists when the information is made
 expressly confidential by law or when disclosure would implicate interests of third party); Tex. Att’y
 Gen. OR1994-630 (same). Thus, the AG argues, the DA, having failed to demonstrate an
 independent compelling reason, has waived the exception under sections 552.103 and 552.107(1)
 and must disclose the information.
         7
          We see no reason to reiterate this Court’s reasoning in Abbott at length here. See Tex. R.
 App. P. 47.1 (opinions should be as brief as practicable).

                                                   12
the attorney-client privilege is dispositive, we need not decide whether the work product exception can

constitute a compelling reason or reach the DA’s fourth issue, in which he argues that the trial court

impermissibly shifted the summary judgment burden by not requiring the AG to show there was no

harm to a third party. See Tex. R. Civ. P. 47.1 (stating that opinions should be as brief as practicable

but address every issues raised and necessary to final disposition).


                                           CONCLUSION

               We affirm the trial court’s judgment denying the DA’s motion for summary judgment,

reverse the trial court’s judgment granting the AG’s motion for summary judgment, and remand for

further proceedings consistent with this opinion.



                                               __________________________________________

                                               Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed in Part; Reversed and Remanded in Part

Filed: January 28, 2015




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