











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00055-CV
______________________________


HOUSTON MUNICIPAL EMPLOYEES
PENSION SYSTEM, Appellant
 
V.
 
GREG ABBOTT, ATTORNEY GENERAL OF TEXAS, Appellee


                                              

On Appeal from the 353rd Judicial District Court
Travis County, Texas
Trial Court No. GN303629


                                                 



Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Carter


O P I N I O N

            Houston Municipal Employees Pension System (HMEPS) appeals from the denial of its
request for a declaratory judgment.  HMEPS had asked Greg Abbott, the Attorney General of Texas,
for direction concerning the scope of its necessary response to information sought by the news
media.  HMEPS disagreed with parts of the Attorney General's conclusions, and sought judicial
direction.  The trial court agreed with the Attorney General's conclusion that HMEPS was required
to produce certain documents.  This appeal ensued.
            A television station asked HMEPS to provide it with information about income, salaries,
benefits, and bonuses provided to the executive director and members of the Pension Board. 
HMEPS provided part of the information, but decided that some of the records could not be released
because of the confidentiality provisions of the Pension Statute.  At that point in the proceedings,
there were a number of different records sought.  Since then, the scope has been narrowed to two
categories of records, as set out below.
            HMEPS sought an open records decision from the Attorney General's Office.  The Attorney
General declared that Section 26 of the Pension Statute did not remove information relating to the
pension fund participants from the scope of the Public Information Act (PIA) and informed HMEPS
that it was required to release a number of items, some redacted, some complete, and that some items
could be withheld under the exceptions of the PIA.  HMEPS followed the Attorney General's
directives, for all but two categories of documents that remain in dispute.
            HMEPS then sought a declaratory judgment.  The trial court declared that it had to produce
unredacted copies of the two types of items that remain at issue.
            HMEPS appeals, arguing that it should not have to produce:  (1) records showing pay and
bonuses of HMEPS employees who are also HMEPS participants; and (2) schedules
 disclosing
pension payments to individual HMEPS participants, participants' requests for disability benefits,
participants' payments to HMEPS for increased benefits, and participants' requests to change or
commence participation in different programs or groups offered by the fund.
Underlying Concepts:  Review of Statutory Pronouncements
            When interpreting statutes, we try to give effect to legislative intent.  Legislative intent
remains the polestar of statutory construction.  However, it is cardinal law in Texas that a court
construes a statute, first, by looking to the plain and common meaning of the statute's words.  If the
meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation
supported by the plain meaning of the provision's words and terms.  Further, if a statute is
unambiguous, rules of construction or other extrinsic aids cannot be used to create ambiguity. 
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999); accord In re
Entergy Corp., 142 S.W.3d 316 (Tex. 2004). 
Are the Records Subject to Disclosure Under the Public Information Act?
            The position of HMEPS is quite straightforward.  It argues that the trial court's ruling,
essentially adopting the Attorney General's argument, was incorrect and that Tex. Rev. Civ. Stat.
Ann. art. 6243h, Section 26(a), specifies that the records are NOT public information, and thus, the
PIA does not apply.  The Pension Statute provides that:
(a)  Records that are in the custody of the pension system concerning an
individual member, deferred participant, retiree, eligible survivor, beneficiary, or
alternate payee are not public information under Chapter 552 Government Code,
and may not be disclosed in a form identifiable to a specific individual unless:  [a list
of exceptions, none of which are applicable on their face to this case].

(Emphasis added.)  HMEPS contends that these are such records, in the custody of the pension
system, concerning individual members, and thus—by the explicit and clear language of the
statute—the records are not public information.  
            HMEPS is correct.  The Attorney General presents four reasons why these records must be
released:  (1) it is contrary to the plain language and core principles of the PIA, (2) there is an
internal inconsistency in the Pension Statute, (3) it would create an exception that would allow
HMEPS to administratively operate outside of any public scrutiny, and (4) the records are public
information because they could be disclosed if identifying information is redacted.  We will address
these issues: 
            (1) Contrary to the plain language and core principles of the PIA.
            It is true, as the Attorney General argues, that the PIA should be liberally construed and that
the manner and degree to which public funds are expended is of public interest.  Based on that
premise, the Attorney General argues that it is proper to distinguish records from HMEPS that
pertain to staff as public employees and records solely as pension system members.  The Attorney
General suggests that finding such a distinction allows "the pension system statute and the PIA to
be read in harmony."  That may be a valid suggestion for the Legislature to consider, but the statute
that we must interpret makes no such distinction in the records in the custody of HMEPS.
            (2)  Internal inconsistency in the Pension Statute. 
            The Attorney General also argues that the records should be released because another portion
of the Pension Statute (Section 26(b)) specifically allows disclosure of the fact that a particular
person is a participant in the system.  The Attorney General argues that Section 26(a) and (b) can
only be harmonized by construing 26(a) "narrowly"—it prohibits the public release of pension
information only when such release would identify a pension individual and pension system
information.  Identifying a person as a participant is not equivalent to providing details about that
person's participation.  The records, which could (but might not) contain such details are the specific
type of documents that are not subject to the PIA.  The Pension Statute does not differentiate
between various types of records held by the pension system—or suggest that some are subject to
the PIA while some are not—or that some might be shifted to be under the aegis of the PIA if some
particular type of information was redacted from the record.  Again, the statute states that records
in custody of the system concerning individual members are not public information under
Chapter 552 of the Texas Government Code.  See Tex. Gov't Code Ann. §§ 552.001–.353 (Vernon
2004 & Supp. 2005).  That pronouncement has a degree of clarity uncommon to many legislative
enactments. 
(3)  It would create an exception that would allow HMEPS to administratively operate
outside of any public scrutiny.  

            We recognize that the reason behind the Attorney General's reasoning is this:  part of the
information sought was salary and bonus records, which are—when public
information—discoverable under the PIA.  That argument, nonetheless, runs contrary both to the
language of the Pension Statute and the internal pronouncement of the PIA itself.  See Tex. Gov't
Code Ann. § 552.101 (Information is excepted from the requirements of the Act if it is confidential
by law—either constitutional, statutory, or by judicial decision.).
            (4)  May the records be released if identifying information has been redacted?
            The Attorney General further argues that the schedules are public information because one
section of Section 26(a) allows the release of some records if identifying information has been
redacted.  
            To reach that conclusion, the Attorney General theorized that, if the information was
"de-identified" to remove the names, the information was within the scope of the Act, and subject
to disclosure.  The Attorney General suggests that the records are not excluded unless they provide
information about individual members AND also are not redactable to hide the identity of the
individual.  
            That position ignores the clear language of the Pension Statute.  The "and" phrase on which
the Attorney General relies does not either necessarily or by any reasonable implication require that
combination of factors before the records are "not public information."  The statute contains two
separate confidentiality clauses, designed to protect records in two different situations:  (1) the
records are not public information (thus not required to be produced under the PIA), and (2) the
records may not be disclosed in a form identifying the individual (except in certain, specified
circumstances).
            The Pension Statute specifically states that records in the custody of the pension system about
its members are not subject to the PIA.  We have no authority or inclination to rewrite a clear
statutory pronouncement. 
Are the HMEPS Schedules Subject to Disclosure Under the Open Meetings Act? 
            The Attorney General also suggests that the documents should be available because the Open
Meetings Act requires disclosure of the minutes of an open meeting.  See Tex. Gov't Code Ann.
§ 551.022.  This argument, and its statutory support, was not presented to the trial court, and is thus
not properly before us for review.  See Tex. R. App. P. 33.1.  Although the trial court did mention
the Act while making its oral ruling, the ruling was not based on that Act, and it does not appear in
the trial court's judgment.  
            As pointed out by appellant, however, even if that theory of recovery was before this Court,
that Act requires "minutes" to be released to the public.  Minutes are required to (1) state the subject
of deliberation, and (2) indicate the result of the vote or decision.  Tex. Gov't Code Ann.
§ 551.021(b).  The Attorney General argues that, because during the meetings the schedules
addressing pension payments and requests for benefits were considered during the Board's
deliberations, and because those schedules have been filed along with the minutes, they are
equivalent to being part of the minutes.  The Attorney General has directed us to no authority
requiring that result, and we are aware of none.
            We reverse and render judgment in favor of the Houston Municipal Employees Pension
System.
 
                                                                        Jack Carter
                                                                        Justice
 
Date Submitted:          April 18, 2006
Date Decided:             May 9, 2006


 not granting its no-evidence motion
for summary judgment.  Based on this error, Brookshire asks this Court to reverse and
render judgment in its favor, as opposed to reversing and remanding for trial.  Brookshire's
motion asserted Taylor could produce no evidence of actual or constructive knowledge by
it of a dangerous condition as required by the elements of a premises liability cause of
action.  We agree Taylor did not produce evidence of knowledge of the particular piece of
melting ice on the floor that caused her fall.  However, the Texas Supreme Court has
recognized that a storekeeper may be liable for any dangerous premises condition about
which such storekeeper should be aware, not just for specific objects left on the floor.  Id.
at 298.  Taylor alleged the placement of the Coke dispenser without adequate matting was
the dangerous condition, not just the particular piece of melting ice on the floor.  Moreover,
after making such allegation, Taylor produced evidence of Brookshire's knowledge of this
dangerous condition:  the testimony of the deli employee that ice from the Coke dispenser
fell on the floor on a regular basis.  Accordingly, this point of error is overruled.  
	We affirm the judgment.


							Donald R. Ross
							Justice

Date Submitted:	January 15, 2003
Date Decided:	April 1, 2003

