                                                                                      ACCEPTED
                                                                                  01-15-00145-CV
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                            8/17/2015 12:00:00 AM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK


                          NO. 01-15-00145-CV

                                  Jn tbt                         FILED IN
                                                          1st COURT OF APPEALS
                         .1'irst ~ourt of r&ppeals            HOUSTON, TEXAS
                                  of ~exu                 8/16/2015 3:42:56 PM
                                                          CHRISTOPHER A. PRINE
                                                                  Clerk

                   Harris County Appraisal District
                             Appellant

                                    v.

           Integrity Title Company LLC and Marian Cones
                              Appellees


On Appeal from the 1515t Judicial District Court of Harris County, Texas
               Trial Court Cause Number 2014-13474
              The Honorable Mike Engelhart, Presiding


                       BRIEF OF APPELLEES



                                     Bill Aleshire
                                     State Bar No. 24031810
                                     AleshireLaw, PC
                                     700 Lavaca St., Suite 1400
                                     Austin, Texas 78701
                                     512 320-9155
                                     512 320-9156 Facsimile
                                     Bill@AleshireLaw.com

                                     ATTORNEY FOR APPELLEES


                   ORAL ARGUMENT REQUESTED
            CORRECTED IDENTIFY OF PARTIES AND COUNSEL

        Appellee corrects HCAD's Identity of Parties and Counsel as to the name of

Appellees. The correct name of Appellees is Integrity Title Company, LCC and

Marian Cones.

                      PARTY AND RECORD REFERENCES

        Appellant Harris County Appraisal District is referred to as "HCAD" and

Appellees Integrity Title Company, LLC and Marian Cones are referred to as

"Integrity Title."

        Petitioner GHP will cite the record as follows:

        Clerk's Record                                         CR:(page)

        Reporter's Record                                      RR[vol]:(page)

        Plaintiffs' Exhibits                                   RR[vol] :PX(#)

        Defendant's Exhibits                                   RR[vol]:DX(#)




Appellees' Brief

Page I ii
                                       TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES .................................................................................... iv

STATEMENT ON ORAL ARGUMENT ................................................................. v

ISSUES - REPLY POINTS PRESENTED ............................................................. vi

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT........................................................................ 5

ARGUMENT.............................................................................................................7

         STANDARD OF REVIEW ............................................................................ 7

         REPLY POINT 1 (to Appellant's Issue No. 1):
         REGARDLESS OF ANY RULING BY THE ATTORNEY GENERAL,
         THE TRIAL COURT HAD JURISDICTION UNDER TPIA § 552.321(A)
         TO DETERMINE WHETHER THE REQUESTED INFORMATION
         (HCAD'S RECORD OF THE COUNTY CLERK'S DEED DOCUMENT
         NUMBER & DATE) IS "PUBLIC INFORMATION," THE DISCLOSURE
         OF WHICH IS SUBJECT TO MANDAMUS ................................................ 8

 Section 552.321 confers jurisdiction regardless of Attorney General rulings ......... 8

 El Paso v. Abbott does not apply to facts or pleadings of this case ....................... 10

 Did the Attorney General Even Address the Records at Issue? ............................ 13

         REPLY POINT 2 (to Appellant's Issue Nos. 2 and 3):
         HCAD'S RECORD OF THE COUNTY CLERK'S DEED DOCUMENT
         NUMBER & DATE IS NOT WITHIN THE SCOPE OF THE "MLS
         EXCEPTION" TO DISCLOSURE, TPIA § 552.149 ................................... 14

 Exceptions to disclosure, such as§ 552.149, are narrowly construed................... 14


Appellees' Brief

Page I iii
 TPIA § 552.149 does not apply to Count Clerk deed information........................ 15

 HCAD withholds deed information it did not obtain from a vendor. .................... 18

CONCLUSION....................................................................................................... 19

PRAYER............................. .................................................................................... 20

CERTIFICATE OF COMPLIANCE.......................................................................20

CERTIFICATE OF SERVICE ................................................................................ 21




Appellees' Brief

Page I iv
                                        INDEX OF AUTHORITIES

TEXAS CASES

City ofFort Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.-Austin 2002) ................ 14

El Paso v. Abbott, 444 S.W.3d 315 (Tex. App. -Austin 2014 pet. denied) .....10, 11

Houston lndep. Sch. Dist. v. Houston Chronicle Publishing Co., 798 S.W.2d 580
(Tex. App.- Houston [1st Dist.] 1990, writ denied) ............................................... 13

Jackson v. Texas Dept. ofPublic Safety, 243 S.W.3d 754 (Tex. App.--Corpus
Christi 2007 pet. denied)... .................................................................................... 7, 8

Kallinen v. City ofHouston, 462 S.W.3d 25 (Tex. 2015) ....................................... 10

State Dept. ofHighways & Pub. Transp. v. Gonzales, 82 S.W.3d 322
(Tex. 2002) ................................................................................................................ 7

Texas Appleseed v. Spring Brank !SD, 388 S.W.3d 775 (Tex. App.- Houston (1 st
Dist.] 2012) .............................................................................................................. 14

Texas Dept. ofPub. Safety v. Gilbreath, 842 S.W.2d 408
(Tex. App.- Austin 1992)......................................................................................... 9

Thomas v. Cornyn, 71 S.W.3d 473 (Tex. App. -Austin 2002) ................................9

STATUTES
Tex. Gov't Code§ 552.00l(a) ..................... ............................................................ 14

Tex. Gov't Code § 552.149 ....................................................................... .......passim

Tex. Gov't Code§ 552.321 .............................................................................. passim

LEGISLATIVE HISTORY
Senate State Affairs Comm., Bill Analysis, Tex. H.B. 2188,
      goth Leg., R.S. (2007) .................................................................................... 17


Appellees ' Brief

Page   Iv
                    STATEMENT ON ORAL ARGUMENT


       Appellee requests oral argument only because Appellant requested oral

argument, but with the record and issues of law as clear as they are, this case might

well be decided without oral argument. If oral argument is deemed appropriate,

Appellee asks to be included.


                   ISSUES PRESENTED - REPLY POINTS


       REPLY POINT 1 (to Appellant's Issue No. 1):

       REGARDLESS OF ANY RULING BY THE ATTORNEY GENERAL, THE
       TRIAL COURT HAD JURISDICTION UNDER TPIA              § 552.32l(A) TO
       DETERMINE WHETHER THE REQUESTED INFORMATION (HCAD'S
       RECORD OF THE COUNTY CLERK'S DEED DOCUMENT NUMBER &
       DATE) IS "PUBLIC INFORMATION," THE DISCLOSURE OF WHICH IS
       SUBJECT TO MANDAMUS.



       REPLY POINT 2 (to Appellant's Issue Nos. 2 and 3):

       HCAD'S RECORD OF THE COUNTY CLERK'S DEED DOCUMENT
       NUMBER & DATE IS NOT WITHIN THE SCOPE OF THE "MLS
       EXCEPTION" TO DISCLOSURE, TPIA § 552.149.




Appellees' Brief

Page I vi
                            STATEMENT OF FACTS


      Appellee provides this Statement of Facts to supplement and to correct

errors in Appellant's Statement of Facts.

      Marian Cones, on behalf of Integrity Title Company, LLC. submitted a

public information request to the Harris County Appraisal District (HCAD) for

public information contained in HCAD's computers. CR 135, Finding of Fact 1.

Specifically, Integrity Title asked solely for "a list in electronic format showing the

HCAD account number, the deed transaction date, and the County Clerk's

document     number    (a/k/a   'deed    number')."    (Hereafter,   the   "requested

information".) Id. This is the information at issue in this case.

      HCAD uses public funds, through a contract with Propertyinfo, to collect the

requested information, in addition to other information related to sales prices of

property sold within Harris County.     CR 135, Finding of Fact 2. The deed

document number & date is obtained from the Harris County Clerk's real property

records. CR 136, Finding of Fact 3. Unlike sales price, property description and

characteristics that HCAD's vendor obtains from private sources, the deed

document number/date is generated by and owned by the Harris County Clerk as




Appellees' Brief
Page I l
                                          1
part of the clerk's public records. Id.

       Ironically, HCAD's website discloses other information about real property

deed transactions that it receives from Propertylnfo, including (a) Grantee's name

and address; (b) Grantor' s name; (c) HCAD account number; (d) Lot & block

number of property. See CR: 136 (Finding of Fact 7; RR2: lOl(Lines 17-20);

103-04 (Testimony ofHCAD witness Kelly Sherbert); RR3: PX 4 (Admissions 10

thru 19); (See RR3: PX6 (at page "Cones-0041-44).

       The appraisal district account number and County Clerk's deed

document/date (for each account) is readily available online from appraisal

districts throughout Texas-except HCAD. RR3: PX 6; RR2: 50 (lines 12-18).

(Samples of CAD online data showing deed document number/date from examples

of the following counties: RR3: PX 6, Bastrop (Cones -001), Bexar (Cones -003),

Brazoria (Cones -004), Brazos (Cones -006,7), Cameron (Cones -009), Chambers

(Cones -0010), Collin (Cones -0012), Comal (Cones -0014), Dallas (Cones -0017),

Denton (Cones -0021), Fort Bend (Cones -0023), Galveston (Cones -0024),

Guadalupe (Cones -0026), Hays (Cones -0028), Liberty (Cones -0032), Lubbock

(Cones -0033), Montgomery (Cones -0034), Tarrant (Cones -0036, 37), Travis


             The County Clerk creates and prints the deed document number and
date on the deed when filed, usually in the upper right comer of the first page of
the document. An example can be found at RR4: 161.


Appellees' Brief

Page 12
(Cones -0039), and Waller (Cones -0040)).

      HCAD refused to supply the requested information and sought a ruling by

the Attorney General. CR 136, Finding of Fact 4. Integrity Title disagrees with

the statement in HCAD's Statement of Facts (at 1), that the Attorney General ruled

that the requested information must be withheld from disclosure, because, as the

trial court pointed out, that ruling (OR2014-00904) "is not very closely related to

what the actual dispute is .... "   CR: 137, Conclusion of Law 4.       The Attorney

General relied on HCAD'S erroneous description of what information was

requested which implied, for example, that sales price information was being

requ~sted.   RR3: PX2 at 2 (noting HCAD's submission to the Attorney General of

an entire "Property Transaction Report" received by Property Info "from a private

multiple listing service"); RR3: PX3 (OR2014-00904 at 2-3 ("In this instance, you

[HCAD] state the submitted information relates to real property sales and was

provided to the district by a private entity .... Based on your representations and our

review, we find the district must withhold the submitted information under section

552.149(a) of the Government Code.").

       HCAD' s ruling request to the Attorney General obfuscated what specific

information Integrity Title was actually requesting and wrongly implied to the

Attorney General that broader "deed transaction information" on the vendor's

"Property Transaction Report" (which does include confidential MLS sales price

Appellees' Brief

Page 13
information) was at issue. RR3: PX2. HCAD's letter request never clarified that

the only information at issue was HCAD's records of the County Clerk's deed

document number/date.      Id.   Likewise, the Attorney General' s ruling never

mentioned the specific information at issue nor the fact that the information at

issue was created by and derived from the County Clerk's office (not MLS), and

relied on HCAD's misleading representations. RR3: PX3 (OR2014-00904 at 2-3.

       The trial court not only determined that HCAD's record of the Harris

County Clerk's deed document number/date was public information, and not

confidential under section 552.149, the court found that the Attorney General

ruling "is not very closely related to what the actual dispute is ...."    CR: 137

(Conclusion of Law 4).

       The court said:

       In taking into consideration the Attorney General' s ruling (OR2014-
       00904) that the requested information is not subject to disclosure, the
       Court finds that the description of the disputed information in
       OR2014-9904 is not very closely related to what the actual dispute is,
       i.e., a dispute about information that comes from a publicly funded
       office (the Harris County Clerk's Office), then goes through the
       machinations of a private company under contract with public funds
       and then sold back to another governmental entity, the Harris County
       Appraisal District.




Appellees' Brief

Page 14
                      SUMMARY OF THE ARGUMENT

      The trial court correctly denied HCAD's plea to the jurisdiction. Pursuant to

TPIA section 552.32l(a), the trial court has jurisdiction to determine whether the

requested information was "public information" for which mandamus should issue,

regardless of how, or even whether, the Attorney General ruled on that issue.

HCAD is clearly wrong in asserting that the court loses jurisdiction "because

HCAD followed the Attorney General's directive [the open record ruling] ."

      The information Integrity Title requested from HCAD's computer records

was merely the deed document number(s)--created and assigned to each deed by

the Harris County Clerk in the Clerk's public records- and the deed/sale date(s)

for each parcel of real property on HCAD's appraisal records. In the court's ruling

(RR2: 145], the trial court framed well the issue in this case, about whether Section

552.149, the "MLS Exception" to disclosure, makes the requested information

confidential. The court said:

       It is not a case about MSL sales data or privately generated

       information.   It's a dispute about information that comes from a

      publicly funded office [the Harris County Clerk's Office] , then goes

       through the machinations of some private company [PropertyInfo] and

       then sold back to another governmental entity [HCAD].

RR2: 145

Appellees' Brief

Page 15
       Although, the deed document number and date is undeniably public

information if obtained from the County Clerk-and HCAD has never asserted

otherwise-HCAD argues that it morphs into confidential information because

HCAD paid a vendor to go obtain that information from the County Clerk and

provide it to HCAD. The fact that HCAD's contractor also obtains and provides

HCAD with other information from other sources, including MLS sales price and

property characteristics, is irrelevant because Integrity Title has not requested any

of that other information.

       The legislative history of section 552.149 indicates that after prev10us

Attorney General rulings that MLS-obtained data (such as sales prices) became

subject to public disclosure in the hands of the appraisal districts, MLS refused to

provide this helpful information to appraisal districts anymore. So, the Legislature

enacted TPIA section 552.149-the "MLS Exception"-so that appraisal districts

could still obtain confidential privately-generated information, such as sales prices,

pictures of the property, descriptions (such as "2 bedroom/2 bath") and

characteristics (such as "swimming pool").      This MLS Exception to disclosure

does apply to information that Integrity Title has not requested, but the exception

does not apply to the information Integrity Title did request.

       HCAD urges an enormously broad interpretation of section 552.149 that

would make confidential every bit of property information HCAD purchases from

Appellees' Brief

Page 16
any source with public funds, regardless of the original source or nature of the

information obtained. Under HCAD's interpretation of section 552.149, if HCAD

itself paid the County Clerk for a copy of a deed, HCAD' s copy of that public

record would be confidential information.

       HCAD's interpretation is at odds with the mandate to narrowly interpret

exceptions to disclosure in the TPIA. Section 552.149 is applicable to privately-

generated information, such as sales prices, and it is inapplicable to government-

generated information, such as deed document number, even if obtained by

HCAD' s vendor from the County Clerk' s public records.

                           APPELLEES'ARGUMENT

                            STANDARD OF REVIEW

       Because this appeal is based on a challenge to the trial court's subject-matter
                                                  2
jurisdiction under Tex. Gov't Code § 552.321,         which is a question of law, this

Court reviews the trial court's ruling de nova. State Dept. of Highways & Pub.

Transp. v. Gonzales, 82 S.W.3d 322, 327 (Tex. 2002). Likewise, this Court

reviews the question of law of the trial court' s interpretation of Tex. Gov't Code§

552.149(a) de nova, narrowly interpreting such an exception to disclosure and

liberally construing the TPIA in favor of disclosure. Jackson v. Texas Dept. of


       2
              For brevity, references to Tex. Gov't Code ch. 552 and its sections
will be to the Texas Public Information Act as the "TPIA."
Appellees' Brief

Page 17
Public Safety, 243 S.W.3d 754, 757 (Tex. App.-Corpus Christi 2007 pet. denied)

("The TPIA directs the courts to liberally construe its provisions in favor of

disclosure and to narrowly interpret the exceptions to disclosure. [citations

omitted] .... Under the TPIA, determining whether an exception to disclosure

applies is a question of law.").



                                   REPLY POINTS

                    REPLY POINT 1 (to Appellant's Issue No. 1):

       REGARDLESS OF ANY RULING BY THE ATTORNEY GENERAL, THE
       TRIAL COURT HAD JURISDICTION UNDER TPIA              § 552.32l(A) TO
       DETERMINE WHETHER THE REQUESTED INFORMATION (HCAD'S
       RECORD OF THE COUNTY CLERK'S DEED DOCUMENT NUMBER &
       DATE) IS "PUBLIC INFORMATION," THE DISCLOSURE OF WHICH IS
       SUBJECT TO MANDAMUS.



    Section 552.321 confers jurisdiction regardless of Attorney General rulings

       Section 552.321 's grant of jurisdiction to the court contains nothing that

suggests the Court lacks jurisdiction based on why, i.e. , for what reason, the

governmental body refuses to supply the requested public information. Even if the

governmental body refuses to supply public information because the Attorney

General ruled an exception to disclosure applied, the Court still has jurisdiction to

determine whether the exception to disclosure applies.           The case law is


Appellees ' Brief

Page 18
indisputable and clear that courts have jurisdiction under section 552.321 when a

governmental body withholds public information, regardless of whether the

Attorney General was asked for a ruling and regardless of what that ruling was.

        In fact, long-held case law makes this very clear. "Section 552.321 confers

upon the trial court the authority to issue a writ of mandamus in three

circumstances..."   Thomas v. Cornyn, 71 S.W.3d 473, 481 (Tex. App. -Austin

2002 no pet) (emphasis added). The second circumstance listed by the Court was
                                                                            3
"where the governmental body refuses to supply public information." Id.

        In Thomas, the Court explicitly rejected the same claim that HCAD makes

here: that if the Attorney General rules information is not subject to disclosure, the

Court lacks jurisdiction under Section 552.321(a).       "A requestor may bring a

mandamus action regardless of whether an attorney general' s opinion has been

requested or despite the issuance of an adverse attorney general's opinion that

favors the withholding of the information."     Thomas v. Cornyn, 71 S.W.3d 473

(Tex. App.-Austin 2002 no pet.) (citing Texas Dept. of Pub. Safety v. Gilbreath,

842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ)) (emphasis added).

        If any doubt remained about whether courts have jurisdiction under section


        3
              The other two circumstances are ( 1) where a governmental body
refuses to request an attorney general' s decision, and (3) where a governmental
body refuses to supply public information that the attorney general has determined
is public information not excepted from disclosure. Id.
Appellees' Brief

Page   19
552.321 to determine whether information must be disclosed- regardless of

whether or how the Attorney General might have ruled- all doubt was eliminated

by a more recent decision of the Texas Supreme Court. In Kallinen v. City of

Houston, the City of Houston argued that the trial court lacked jurisdiction until the

Attorney General ruled. But the Supreme Court said:

        Further, the City's view of Section 552.321(a) would relegate
        mandamus relief to compelling a governmental body to request an
        Attorney General's decision and then comply with it. The correctness
        of that decision would be unreviewable. But we have reviewed the
        Attorney General' s rulings. [citations omitted]. And we have
        interpreted PIA exceptions without a ruling by the Attorney General.
        [citations omitted].

Kallinen v. City ofHouston, 462 S.W.3d 25, 28 (Tex. 2015).

             El Paso v. Abbott does not apply to facts or pleadings of this case

        HCAD's Brief, at 7, wrongly cites El Paso v. Abbott, 444 S.W.3d 315, 327

(Tex. App.-Austin 2014 pet. denied) for the proposition that HCAD can withhold

the information "because HCAD followed the Attorney General's directive"

(referring to the ruling OR2014-00904).             Such an interpretation of section

552.321(a)-that the court loses jurisdiction if the governmental body complies

with the Attorney General's ruling and withholds public information- is

repudiated by the Supreme Court's opinion in Kallinen v. City of Houston. The

court has jurisdiction to determine if the withheld information is public information

subject to disclosure, regardless of how the Attorney General ruled.

Appellees ' Brief

Page   110
       HCAD misreads the circumstances and the actual holding in the El Paso

case. In El Paso, there were two types of information at issue: (1) emails between

Council members that the City, at first, resisted disclosing despite the Attorney

General's ruling that the City must release those emails, and (2) the personal email

addresses the Council members used for the emails about official City business,

that the Attorney General ruled were not subject to disclosure and could be

withheld. El Paso v. Abbott, 444 S.W.3d at 327. So, two of the circumstances in

section 552.321(a) were at issue, (1) whether the City refused to disclose

information the Attorney General considered subject to disclosure (the emails

between Council members), and (2) whether the City refused to disclose public

information, regardless of how the Attorney General ruled (the email addresses).

       While the lawsuit was pending, the City announced it would change its

position and comply with the ruling and asserted with affidavits that it had

disclosed all of the emails between the Council members. El Paso v. Abbott, 444

S.W.3d at 317 ("During the pendency of its suit, however, the City decided to

comply in full with the attorney general's decision and produced to Allala the

responsive information in its possession."). That change of circumstances is why

the Court held that the City was no longer "refusing" to disclose information that

the Attorney General ruled should be disclosed. El Paso v. Abbott, 444 S.W.3d at

324.

Appellees ' Brief

Page 111
       This part of the El Paso opinion is irrelevant to the present HCAD case

because the Attorney General did not hold that information should be disclosed by

HCAD. Instead, Integrity Title asserts, and the trial court found, that HCAD is

refusing to supply "public information" even though the Attorney General-

supposedly- ruled the requested information was not subject to disclosure. The

court has jurisdiction to make that determination.

       As to the second issue in El Paso, the disclosure of the email addresses, the

Court suggested that the requestor's original petition had not included a claim that

the city withheld public information, only that the city had withheld information

the Attorney General had indicated should be disclosed, which the Court found
                                      4
they were no longing withholding.         That pleading issue was disputed and the

subject of briefing to the Supreme Court in the petition for review (which was

denied).    No such pleading issue exists in this case.     CR 7 (Integrity Title's

Original Petition pleading, "Pursuant to TPIA section 552.321, Integrity Title seeks

a writ of mandamus from the Court to compel HCAD to provide the public

information requested by Integrity Title."). (emphasis added).

       The Court of Appeals opinion in El Paso, is not to be read for the


       4
             Counsel for Integrity Title, Bill Aleshire, in this case was also counsel
for the requestor/intervenor, Stephanie Allala, in the El Paso case and is very
familiar with the facts, issues, and pleadings in that case.


Appellees' Brief

Page I 12
proposition asserted by HCAD, that if the Attorney General rules that public

information can be withheld, then a trial court lacks jurisdiction to consider

whether the Attorney General was correct. Even if that had been the holding in El

Paso, such a holding would be directly at odds with the Supreme Court's holding

in Kallinen. The bottom line is that the El Paso opinion did not address whether

the email addresses were "public information" (regardless of the Attorney

General's opinion) because the Court did not feel that issue had been pled.

            Did the Attorney General Even Address the Records at Issue?

       Even if HCAD were correct, that the court lacks jurisdiction under section

552.321 ifHCAD withholds public information because the Attorney General says

they can, in this case, it is not clear that the ruling by the Attorney General made

such a clear ruling on the requested information, and, regardless, the trial court was

bound to follow such a ruling. It is a long-held legal maxim in Texas that Attorney

General opinions are given consideration by the Courts, but the Courts are not

obligated to accept the Attorney General opinions. "While such opinions are to be

given great weight, they are not binding upon a court of law." Houston Indep. Sch.

Dist. v. Houston Chronicle Publishing Co., 798 S.W.2d 580, 588 (Tex. App.-

Houston (1st Dist.] 1990, writ denied). Even after an Attorney General ruling, the

trial court maintains jurisdiction to determine if HCAD refused to supply public

information without legal excuse for doing so. Furthermore, in this case, the trial

Appellees' Brief

Page I 13
court determined (Conclusion of Law 4) that the Attorney General's ruling did not

even address the real issue of whether HCAD' s record of the County Clerk's deed

document number/date is subject to disclosure.



              REPLY POINT 2 (to Appellant's Issue Nos. 2 and 3):

       HCAD'S RECORD OF THE COUNTY CLERK'S DEED DOCUMENT
       NUMBER & DATE IS NOT WITHIN THE SCOPE OF THE "MLS
       EXCEPTION" TO DISCLOSURE, TPIA § 552.149.

        Exceptions to disclosure, such as§ 552.149, are narrowly construed

       As an initial matter of statutory interpretation, TPIA section 552.00l(a) says,

"   it is the policy of this state that each person is entitled, unless otherwise

expressly provided by law, at all time to complete information about the affairs of

government and the official acts of public officials and employees." Tex. Gov't

Code section 552.00I(a). Courts have consistently held: "To that end, the act

must be liberally construed in favor of granting a request for information and the

exceptions must be narrowly construed." Texas Appleseed v. Spring Brank !SD,

388 S.W.3d 775, 778 (Tex. App.- Houston [Pt Dist.] 2012)(citing TPIA section

552.00I(b) requiring act to be liberally construed in favor of granting request for

information); City ofFort Worth v. Cornyn, 86 S.W.3d 320, 329 (Tex. App.-Austin

2002) (holding Texas courts have consistently narrowly construed the type of

information that may be withheld under the act's exceptions). (emphasis added).

Appellees' Brief

Page 114
       So, the "MLS exception" to disclosure in section 552.149 is be narrowly
             5
construed.       HCAD gives an overly broad reading of the MLS Exception. Section

552.149 does not, as HCAD argues, "state[] that the information received from a

private entity, such as [Propertylnfo], under Chapter 6 of the Tax Code is excepted

from disclosure."       HCAD's Brief at 10.      Section 552.149 does not make

confidential all information HCAD receives from a paid contractor. If it did,

HCAD could not publicly disclose, as it does, its own account number, the date of

a deed transaction, the legal description of the property, the property address, or

the grantor/grantees names, for example. Note also that HCAD publicly discloses

details about the property such as land area; total living area, map location,

exemptions by type; year built, quality, foundation type, heating/AC, room and

bath total, even whether it has a fireplace. RR3: PX6 (at page "Cones-0041-44).

           TPIA § 552.149 does not apply to Count Clerk deed information

       Neither by its language nor in reviewing its legislative purpose does section

552.149 apply to information obtained from public records of the County Clerk's

office. By its wording, section 552.149 does not apply to all information HCAD

obtains about real property, even from contractors; it applies only to "real property

sales prices, descriptions, characteristics, and other related information" that


       5
           A Westlaw search revealed no reported appellate court opinions, only
Attorney General letter rulings, interpreting section 552.149(a).
Appellees' Brief

Page 115
HCAD receives from contractors. On its face, that would not include the deed

document number created by the County Clerk and stamped onto each deed filed in

the Clerk's Office, even if a copy of that public record is provided to HCAD by its

contractor.

Section 552.149 makes confidential only:

               1.    "sales prices" - Integrity Title has not requested sales price

information;

               2.    "descriptions" - Integrity Title has not requested a description

of any real property. Revealing a deed document number/date does not reveal a

description of the property.

               3.    "characteristics"           Integrity Title has not requested

characteristics of any real property. Revealing a deed document number/date does

not reveal characteristics of the property.

               4.    "other related information" - The County Clerk's deed

document number is not related to the sales price or property description or

characteristics.    This phrase is to be narrowly construed and confined to the

preceding "sales price" and description/characteristics of the property that the

private entity creates or owns. The deed document number/date is not created by

or owned by Propertyinfo, and certainly the HCAD account number is not.

       In addition, the legislative history of the MLS Exception to disclosure

Appellees' Brief

Page I 16
reveals a narrow purpose for this exception; it was merely intended to "allow[]

relationships between MLSs and appraisal districts to continue." See OR2014-

00904 at 2; RR3: PX 3 at 2 (" ... the purpose of this statute is to allow relationships

between the MLS and appraisal districts to continue.").         Section 552.149 was

added to the Government Code in 2007 by H.B. 2188, and the Bill Analysis,

"Background and Purpose" (in its entirety) says:

      BACKGROUND AND PURPOSE

      Many privately-owned and operated multiple listing services (MLS)
      provide information to appraisal districts regarding the sale of real
      property. This is done not as a requirement, but on a voluntary basis.
      The relationship benefits both parties: (1) appraisal districts are aided
      in their valuation of real property and (2) multiple listing services
      benefit from more complete property tax records, including square
      footage, and other property information retained by appraisal districts.

      Recently, the Attorney General issued an opinion indicating
      information provided by an MLS to an appraisal district through a
      confidentiality agreement is nonetheless subject to open records
      statutes. As a result, many multiple listing services have discontinued
      providing sales information to appraisal districts.

       C.S.H.B. 2188 will exempt real property sales prices, descriptions,
       characteristics, and other related information provided by a private
       entity to an appraisal district from disclosure under open records laws
       thereby allowing relationships between MLSs and appraisal districts
       to continue.

Senate State Affairs Comm., Bill Analysis, Tex. H.B. 2188, 80111 Leg., R.S.
(2007). (emphasis added).

      HCAD errs by interpreting the MLS Exception so broadly to apply to


Appellees' Brief

Page 117
information obtained from the County Clerk's public records. Such records are not

included in the description of information to which the language of section 52.149

says it applies. Section 552.149 was merely intended to permit appraisal districts

to get sales price information and other property information from MLS that MLS

real-estate agents collected, created, and provided to MLS without making that

proprietary MSL data subject to disclosure to the public. None of the information

at issue in this case (the HCAD account number and County Clerk's deed

document number/date) was created by, or owned by, Property Info, an MLS, or

any private entity.

            HCAD withholds deed information it did not obtain from a vendor

       As noted above, Section 552.149 is limited to privately generated

information (such as sales prices) that HCAD "received from a private entity ...

under Chapter 6, Tax Code ...." Chapter 6, specifically section 6.11 , of the Tax

Code is merely the appraisal district's general purchasing and contracting

authority. So, section 552.149 applies only to information of the limited character

described in section 552.149 (basically private-generated information such as

"sales prices, descriptions, characteristics....") that HCAD contracts to obtain, not

to information HCAD obtains or receives without such a contract.

       But at trial, it was discovered that HCAD also withheld County Clerk deed

document numbers in HCAD's records that HCAD obtained voluntarily from

Appellees' Brief

Page I 18
taxpayers providing copies of deeds or otherwise. RR2: 93, 97, (Testimony of

HCAD witness Kelly Sherbert, testifying that "probably 20 to 30 percent" of

HCAD's files with the County Clerk's deed document number in them were

obtained without a contract, e.g., clearly outside the scope of section 552.149. This

is an important fact that HCAD did not disclose to the Attorney General in its

request for a ruling. HCAD is without any legal excuse whatsoever for having

refused to provide the accounts with deed document numbers that were not

provided by Propertylnfo.

                                 CONCLUSION

       The trial court's judgment should be affirmed. The court has jurisdiction

under TPIA section 552.321(a}-regardless of any Attorney General open records

disclosure ruling-to mandamus HCAD because HCAD refuses to provide "public

information," i.e., the HCAD files showing the County Clerk's deed document

number and date. The information Integrity Title requested from HCAD is not

information within the scope of section 552.149(a), the MLS Exception to

disclosure, especially under proper rules for interpreting the Texas Public

Information Act.




Appellees' Brief

Page j 19
                                   PRAYER

       For these reasons, Appellees ask this Court to affirm the trial court's

judgment.




                                  &~ Bill Aleshire
                                     Texas Bar No. 24031810
                                     AleshireLAW, P.C.
                                     700 Lavaca, Suite 1400
                                     Austin, Texas 78701
                                     Telephone: (512) 320-9155
                                     Facsimile: (512) 320-9156
                                     Bill@AleshireLaw.com


                     CERTIFICATE OF COMPLIANCE

       I certify that this Brief complies with TRAP Rule 9.4 and contains 4,217

words in Times New Roman typeface of 14-point.


                                       Isl Bill Aleshire
                                       Bill Aleshire




Appellees' Brief

Page I 20
                         CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing document was served on the parties,

through counsel of record, via e-file on August 16, 2015.

Appellant's Counsel
Donna L. Johnson
State Bar No. 24068896
DJ ohnson@olsonllp.com
Andrea Chan
State Bar. No. 04086600
AChan@olsonllp.com
OLSON & OLSON
Wortham Tower, Suite 600
2727 Allen Parkway
Houston, Texas 77019-2133
Telephone: (713) 533-3800
Fax:         (713) 533-3888

                                         Isl Bill Aleshire
                                         Bill Aleshire




Appellees' Brief

Page 121
