      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00744-CV



               Greg Abbott, Attorney General of the State of Texas, Appellant

                                                 v.

   North East Independent School District and Dr. Richard A. Middleton, in his Official
                 Capacity as Custodian of Public Records for North East
                         Independent School District, Appellees



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   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
       NO. GN304566, HONORABLE PATRICK O. KEEL, JUDGE PRESIDING
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                                          OPINION


               In this case, we decide whether a memorandum from a school principal to a teacher

concerning complaints about the teacher and directing corrective action is “a document evaluating

the performance of a teacher” that is confidential and exempt from disclosure under the Texas Public

Information Act. See Tex. Educ. Code Ann. § 21.355 (West 1996); Tex. Gov’t Code Ann. § 552.101

(West 2004). We have reviewed the document, and we agree that it is “a document evaluating the

performance of a teacher.” See Tex. Educ. Code Ann. § 21.355. As a result, we affirm the district

court’s summary judgment in favor of North East Independent School District.
               North East Independent School District (NEISD) received a request under the Texas

Public Information Act for all records concerning an NEISD teacher. NEISD provided some of the

requested documents but withheld, among others, a memorandum dated May 20, 2003. This

memorandum is the only document at issue in this case.1

               NEISD requested a ruling from the Attorney General concerning the memorandum,

asserting that the memorandum was exempt from disclosure under education code section 21.355.

In response, the Attorney General issued a memorandum ruling, finding that the memorandum was

not “a document evaluating the performance of a teacher” and thus not confidential. See id. NEISD2

filed suit in Travis County, challenging the Attorney General’s determination and seeking a

declaration that the memorandum is confidential and thus exempt from disclosure. NEISD filed a

traditional motion for summary judgment, and the Attorney General filed a cross-motion. The

district court granted NEISD’s motion and denied that of the Attorney General. This appeal

followed.

               The Attorney General presents one issue on appeal, arguing that the district court

erred in granting summary judgment in favor of NEISD because the memorandum is not “a

document evaluating the performance of a teacher” excepted from disclosure under the Texas Public

Information Act (TPIA). See id.; Tex. Gov’t Code Ann. § 522.101.




       1
         This document remains under seal. We have reviewed it fully and refer to its contents only
as necessary to resolve the dispute before us.
       2
         Both NEISD and Dr. Richard A. Middleton, NEISD’s custodian of public records, filed
suit. For sake of simplicity, we refer to both parties as NEISD.

                                                2
               We review the district court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no disputed issues of

material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);

Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16).

Where, as here, both parties move for summary judgment and the district court grants one motion

and denies the other, we review the summary-judgment evidence presented by both sides, determine

all questions presented, and render the judgment that the district court should have rendered. Texas

Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004); FM Props.

Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). We must affirm the summary

judgment if any of the grounds asserted in the motion are meritorious. Patient Advocates, 136

S.W.3d at 648; FM Props., 22 S.W.3d at 872.

               “It is the policy of this state that each person is entitled, unless otherwise expressly

provided by law, at all times to complete information about the affairs of government and the official

acts of public officials and employees.” Tex. Gov’t Code Ann. § 552.001(a) (West 2004). The

provisions of the TPIA are to be “liberally construed in favor of granting a request for information.”

Id. § 552.001(b). To withhold information under the TPIA, a governmental body must establish that

the requested information is not subject to the Act or that withholding the information is permitted

by one of the TPIA’s enumerated exceptions to disclosure. City of Fort Worth v. Cornyn, 86 S.W.3d

320, 323 (Tex. App.—Austin 2002, no pet.) (citing Thomas v. Cornyn, 71 S.W.3d 473, 490 (Tex.

App.—Austin 2002, no pet.)). Whether information is subject to the Act and whether an exception



                                                  3
to disclosure applies are questions of law. A & T Consultants v. Sharp, 904 S.W.2d 668, 674 (Tex.

1995).

               Here, the parties agree that this case concerns only whether the memorandum is “a

document evaluating the performance of a teacher” under section 21.355 of the education code, thus

rendering the document confidential by law. This issue requires us to construe the word “evaluating”

in section 21.355, a task that presents a question of law, which we review de novo. See In re

Forlenza, 140 S.W.3d 373, 376 (Tex. 2004); McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003).

When interpreting a statutory provision, we must ascertain and effectuate legislative intent. Tex.

Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004).

We first look to the plain and common meaning of the words the legislature used. Tex. Gov’t Code

Ann. § 311.011 (West 2005); Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000); Texas Workers’

Comp. Comm’n v. Texas Builders Ins. Co., 994 S.W.2d 902, 908 (Tex. App.—Austin 1999, pet.

denied). In ascertaining legislative intent, we may consider the evil sought to be remedied, the

legislative history, and the consequences of a particular construction. See Liberty Mut. Ins. Co. v.

Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998). Further, we read every word, phrase,

and expression in a statute as if it were deliberately chosen and presume the words excluded from

the statute are done so purposefully. See Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist.,

81 S.W.3d 869, 873 (Tex. App.—Austin 2002, pet. denied); see also 2A Norman J. Singer,

Sutherland Statutory Construction § 47.25 (6th ed. 2000). When the statute does not define a term,

as in this case, we may rely on definitions listed in commonly used dictionaries to discern the plain




                                                 4
meaning. See Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005); Mega Child Care, Inc., 145

S.W.3d at 196.

                 Education code section 21.355 provides that a “document evaluating the performance

of a teacher or administrator is confidential.” Tex. Educ. Code Ann. § 21.355. However, the statute

does not define “evaluating.” Dictionary definitions of “to evaluate” include “1. To ascertain or fix

the value or worth of. 2. To examine and judge; appraise; estimate.” American Heritage Dictionary

453 (1973). The Attorney General has recognized “that the legislature intended to make confidential

any document that evaluates the performance of a teacher or administrator” and that such

categorization includes a broader range of documents than formal appraisals provided by the

education code. Op. Tex. Att’y Gen. No. ORD-643, at *2 (1996); see also Tex. Educ. Code Ann.

§§ 21.351-.357 (West 1996 & Supp. 2005).

                 The Attorney General argues that the memorandum at issue in this case is merely a

teacher reprimand, a document that cannot be an evaluation as a matter of law because it only recites

allegations and metes out discipline but contains no evaluative information.3 In response, NEISD

asserts that distinguishing between “evaluations” and “reprimands” is an empty distinction. Our

review of the document at issue in this case reveals that the school principal was memorializing a

meeting with the teacher concerning performance issues. In addition, the principal reported

additional information that she had received after the meeting concerning the same performance

issues. The principal then gave performance directives and referred the teacher to various NEISD


       3
          We note that the Commissioner of Education has determined separately that teacher
reprimands are confidential under education code section 21.355. See Teva v. Alanis, 109 S.W.3d
890, 894 (Tex. App.—Dallas 2003, no pet.).

                                                 5
board policies and reformed communications procedures. Finally, the principal referred to the

teacher’s status under NEISD’s formal appraisal system and gave further directives.

               After careful review, we find that the memorandum evaluates the teacher because it

reflects the principal’s judgment regarding her actions, gives corrective direction, and provides for

further review. Therefore, we find it confidential and exempt from disclosure. See Tex. Educ. Code

Ann. § 21.355. We overrule the Attorney General’s issue on appeal. We affirm the district court’s

grant of summary judgment.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: May 12, 2006




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