                                                                              ACCEPTED
                                                                          03-15-00631-CV
                                                                                  8017292
                                                               THIRD COURT OF APPEALS
                                                                          AUSTIN, TEXAS
                                                                    11/30/2015 3:36:06 PM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK
                            ______________

                            03-15-00631-CV                FILED IN
                                                   3rd COURT OF APPEALS
                            ______________              AUSTIN, TEXAS
                                                   11/30/2015 3:36:06 PM
                         IN THE                        JEFFREY D. KYLE
                   COURT OF APPEALS                         Clerk
                        FOR THE
            THIRD SUPREME JUDICIAL DISTRICT
                   OF TEXAS AT AUSTIN



                          MELISSA GATES,
                             Appellant

                                vs.

    TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE
       SERVICES AND COMISSIONER JOHN SPECIA,
                      Appellees



                   BRIEF FOR APPELLANT
                      MELISSA GATES



Thomas C. Sanders                 Robert G. Gibson, Jr.
S.B.N. 17609900                   S.B.N. 07873700
P. O. Box 1860                    P. O. Box 387
Sugar Land, Texas 77487           Rosenberg, Texas 77471
281/242-9700 Telephone            713/953-0500 Telephone
281/242-8340 Facsimile            713/953-0750 Facsimile
tcsanders76@yahoo.com             rgglaw@juno.com

ATTORNEYS FOR APPELLANT




               ORAL ARGUMENT IS REQUESTED
                IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of all parties to the trial court’s

final judgment, as well as the names and addresses of all trial and

appellate counsel.

    PARTIES                                  COUNSEL

Plaintiff/Appellant

Melissa Gates                         Thomas C. Sanders
                                      Attorney at Law
                                      P. O. Box 1860
                                      Sugar Land, Texas 77487
                                      281/242-9700 Telephone
                                      281/242-8340 Facsimile
                                      tcsanders76@yahoo.com

                                      Robert G. Gibson, Jr.
                                      Attorney at Law
                                      P. O. Box 387
                                      Rosenberg, Texas 77471
                                      713/953-0500 Telephone
                                      713/953-0750 Facsimile
                                      rgglaw@juno.com

Appellees

Texas Department of Family and        Ken Paxton
Protective Services f/k/a Texas       Attorney General of Texas
Department of Protective and
Regulatory Services and John          Charles E. Roy
Specia, Commissioner of               First Assistant Attorney General
Texas Department of Family and
Protective Services                   James E. Davis
                                      Deputy Attorney General for Defense
                                      Litigation

                                      Angela V. Colmenero
                                      Chief, General Litigation Division


                                    - ii -
   Marc Rietvelt
   Attorney-in-Charge
   Assistant Attorney General
   Office of the Attorney General
   General Litigation Division - 019
   P.O. Box 12548, Capitol Station
   Austin, Texas 78711-2548
   512/463-2120 Telephone
   512/320-0667 Facsimile
   Marc.Rietvelt@texasattorneygeneral.gov




- iii -
                      TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ………...……….……………ii

INDEX OF AUTHORITIES ……………………………………….............vi

STATEMENT OF THE CASE ……….………………………………........ix

STATEMENT OF JURISDICTION .…………………….............................x

ISSUES PRESENTED …………………………………..…………………xi

STATEMENT OF FACTS ………………………………………………….2
     Substantive Facts ……………………………………………………..2

     Procedural Facts ……………………………………………...............5

SUMMARY OF THE ARGUMENT ……………………………………….6

ARGUMENT AND AUTHORITIES …………………………....................7

     APPELLATE STANDARD …………………………………………7

                Plea to Jurisdiction …………………………..................7

     APPLYING STANDARD OF REVIEW TO THE PLEADINGS ….8

     DO THE PLEADINGS, TAKEN AS TRUE, CONFER SUBJECT
         MATTER JURISDICTION UPON THE TRIAL COURT? …9

                Facts pled and which must be taken as true …………..10

                Causes of action pled ………………………………….14

     TRIAL COURT ERRED IN DISMISSING CASE AND DENYING
     MELISSA’S ATTORNEYS’ FEES FOR LACK OF MOOTNESS/
     SUBJECT MATTER DUE TO LIVE CONTROVERSIES ………..15

          Live Controversy as to Substantive Issues ………………….15

          Live Controversy as to Attorneys’ Fees …………..................17




                                 - iv -
     TRIAL COURT ERRED IN FAILING TO DISTINGUISH THE
     DISTINCT FACTS OF THIS CASE FROM CASES APPELLEES
     MISTAKENLY RELIED UPON IN THEIR PLEA ……………......19

                 A. City of El Paso v. Abbott…………………………...19

                 B. Tex. State Bd. Vet. Med. Exams v. Giggleman ……..21

                 C. Abbott and Giggleman are not on point, and thus do
                   not establish mootness/lack of subject matter ……...22

     MOOTNESS STANDARD DOCTRINE EXCEPTIONS ………….24

           Public interest exception ……………………………………..24

                 A.    Appellees’ actions are of public importance …...24

                 B.    Appellees’ actions are capable of repetition and
                       evade appellate review …………………………25

           Collateral consequences exception …………………………..26

           Capable of repetition, yet evading review exception ………..28

                 A.    Challenged action was too short to be litigated
                       fully …………………………………………….28

                 B.    A reasonable expectation exists that Melissa
                       will be subjected to the same action again ……. 29


CONCLUSION ………………………………............................................30

PRAYER ………………………………………………..............................30

CERTIFICATE OF COMPLIANCE ……………………………………...31

CERTIFICATE OF SERVICE …………………………………………….31

APPENDIX

     Final Judgment of July 9, 2015 …………...………………..Exhibit 1



                                 -v-
                     INDEX OF AUTHORITIES

CASES                                                             Page

Allstate Ins. Co. v. Hallman,
       159 S.W.3d. 640, 642 (Tex.2005) …………………………..………15

Bland Independent School Dist. v. Blue,
      34 S.W.3d 547, 554 (Tex.2000) ……………………………......…7, 8

Blum v. Lanier,
     997 S.W.2d 259, 264 (Tex.1999) ……………………………..…….28

Bonham State Bank v. Beadle,
     907 S.W.2d 465, 467 (Tex.1995) ……………………..…………….15

Camarena v. Texas Employment Commission,
    754 S.W.2d 149, 151 (Tex.1988) ……………………………....17, 18

City of El Paso v. Abbott,
       444 S.W.3d 315 (Tex.App.–Austin 2014, pet.
       denied) ………………………………………fn. 9, 19, 20, 21, 22, 23

City of Elsa v. Gonzalez,
       325 S.W.3d 622, 625 (Tex.2010) ……………………………......fn. 4

City of Garland v. Dallas Morning News,
       22 S.W.3d 351, 356 (Tex.2000) ………………………………… fn. 5

City of Houston v. Houston Chronicle Pub. Co.,
       673 S.W.2d 316, 324 (Tex.App.–Houston [1st Dist.] 1984,
       no writ) ……………………………………………………………fn. 5

County of Cameron v. Brown,
     80 S.W.3d 549, 555 (Tex.2002) ..…………………………………….8

Gary W. Gates, Jr. v. Tex. Dep’t of Family and Protective Services and
Anne Heiligentstein, Commissioner, Cause No. D-1-GN-11-002300,
     53rd Judicial District Court, Travis County, Texas no on appeal
     to the Third Court f Appeals, Cause No. 03-13-00369-CV………fn. 7

General Land Office v. OXY U.S.A., Inc.,
     789 S.W.2d 569, 571 (Tex.1990) ..…………………........................28

                                 - vi -
Grand Prairie Hosp. Authority v. Tarrant Appraisal Dist.,
     707 S.W.2d 281, 283 (Tex.App.—Fort Worth 1986, writ ref’d
     n.r.e.)…………………………………………………………..........8,9

Harris County v. Proler,
      29 S.W.3d 646, 647 (Tex.App.—Houston [14th Dist] 2000,
      no pet.) ……………………………………………………………7, 9

Jackson v. State Office of Administrative Hearings,
      351 S.W.3d 290, 293 (Tex.2011) …………….……...........fn. 8, fn. 10

James v. Hubbard,
     21 S.W.3d 558, 560-561 (Tex.App.–San Antonio 2010, no pet.) …27

Labrado v. County of El Paso,
     132 S.W.3d 581, 589-90 (Tex.App.–El Paso 2004, no pet.) ………17

Ngo v. Ngo,
      133 S.W.3d 688, 691 (Tex.App.–Corpus Christi-Edinburg
      2003, no pet.)……………………………………………………fn. 11

Securtec, Inc. v. County of Gregg,
      106 S.W.3d 803, 810-811 (Tex.App.–Texarkana 2003,
      pet. denied) …….……………………………………fn. 11, 24, 25, 26

Spring Branch I.S.D. v. Reynolds,
      764 S.W.2d 16, 19 (Tex.App.–Houston [1st Dist.] 1988, no writ) ...27

State v. Lodge,
       608 S.W.2d 910, 912 (Tex.1980) .……………………………….…27

Tarrant County v. McQuary,
     310 S.W.3d 170, 173 (Tex.App.-Fort Worth (2010)……………........2

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
      852 S.W.2d 440, 446 (Tex.1993) ……………………………………8

Tex. Dep’t of Parks & Wildlife v. Miranda¸
      133 S.W.3d 217, 226 (Tex.2004)……………………………………..2

Texas Department of Transp. v. Jones,
      8 S.W.3d 636, 638 (Tex.1999) ……………………………………….7

                                   - vii -
Tex. Natural Res. Conservation Comm’n v. IT-Davey,
      74 S.W.3d 849, 855 (Tex.2002) ……………….……………………..7

Tex. State Bd. Vet. Med. Examiners v. Giggleman,
      408 S.W.3d 696 (Tex.App.–Austin
      2013) ………………………..……..fn. 9, fn. 10, 19, 21, 22, 23, 25, 26

University Interscholastic League v. Buchanan,
     848 S.W.2d 298, 304 (Tex.App.–Austin 1993, no writ) ………..fn. 11

University of Tex. Med. Branch v. Hohman,
     6 S.W.3d 767, 771 (Tex.App.– Houston [1st. Dist.] 1999,
     pet. dism’d w.o.j.) (op. on reh’g) ..…………..………………………8

Williams v. Lara,
      52 S.W.3d 171, 184 (Tex.2001) …….………………………..…….28


STATUTES                                                         Page

TEX. CIV. PRAC. & REM. CODE Chapter 37 (West Supp. 2014) ……… 6

TEX. CIV. PRAC. & REM. CODE § 37.002(b) (West Supp. 2014) .…….18

TEX. GOV’T. CODE ANN. § 22.220(a) (West Supp. 2014) ………….…..x

TEX. GOV’T. CODE ANN. § 22.221(a) (West Supp. 2014) ……….……..x

TEX. GOV’T. CODE ANN. § 552.001(a) (West Supp. 2014) .xi, 3, fn. 8, 29

TEX. GOV’T. CODE ANN. § 552.221(a) (West Supp. 2014) ……..fn. 6, 20

TEX. GOV’T. CODE ANN. § 552.324(b) (West Supp. 2014) .11, 12, 19, 20




                                - viii -
                        STATEMENT OF THE CASE

Nature of the Case:       Melissa Gates (“Melissa”), Appellant, contends
                          that the Department of Family and Protective
                          Services and John Specia, Commissioner of the
                          Department of Family and Protective Services,
                          Appellees, (collectively “Appellees”) withheld
                          timely production of documents responsive to a
                          request made under the Texas Public Information
                          Act, TEX. GOV’T. CODE ANN. § 552.001, et.
                          seq. (West Supp. 2014), in order to gain a tactical
                          advantage and/or a perceived tactical advantage in
                          a pending registry case. CR 5-7, 9, 168-74.


Judgment signed by:       Honorable Lora J. Livingston. CR 446; APP.

Trial Court:              98th District Court, Travis County, Texas.

Disposition at Trial:     Appellees filed a Plea to Jurisdiction and Amended
                          Plea to the Jurisdiction (“Plea”). CR 49-167, 267.
                          On July 9, 2015, the trial court signed its final
                          Order granting the Plea. CR 446, APP. Melissa
                          filed her Motion for New Trial on August 3, 2015,
                          which was denied by the trial court on September
                          23, 2015. CR 447-57, 515.




                                    - ix -
                  STATEMENT OF JURISDICTION

      This is an appeal of a final Order signed on July 9, 2015, granting

Appellees’ Amended Plea to Jurisdiction. This Honorable Court has

jurisdiction over this appeal by virtue of TEX. GOV’T CODE ANN. §§

22.220(a) and 22.221 (West Supp. 2014).




                                  -x-
                      ISSUES PRESENTED

A. Can a member of the public be denied standing to redress/remedy

   when governmental actors intentionally delay in complying with the

   Texas Public Information Act, TEX. GOV’T. CODE ANN. §

   552.001, et. seq. (West Supp. 2014), in order to gain a tactical

   advantage and/or a perceived tactical advantage in separate and

   concurring litigation?

B. Did the trial court err in concluding that it does not have subject-

   matter jurisdiction due to the mootness doctrine?




                                - xi -
                               ______________

                               03-15-00631-CV
                               ______________

                             IN THE
                       COURT OF APPEALS
                            FOR THE
                THIRD SUPREME JUDICIAL DISTRICT
                       OF TEXAS AT AUSTIN



                             MELISSA GATES,
                                Appellant

                                      vs.

       TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE
         SERVICES AND COMMISSIONER, JOHN SPECIA,
                         Appellees



                         BRIEF FOR APPELLANT
                            MELISSA GATES



TO THE HONORABLE THIRD COURT OF APPEALS:

      Melissa Gates (“Melissa”), Appellant, files this brief in support of her

appeal of the trial court’s final Order granting the Department of Family and

Protective Services’ and Commissioner John Specia’s Amended Plea to

Jurisdiction and by way of this brief shows:



                                     -1-
                          STATEMENT OF FACTS

                               Substantive Facts

      The trial court was required to take the substantive facts pled by Melissa

in her First Amended Petition for Declaratory Relief and in Plaintiff’s

Supplement to Plaintiff’s First Amended Petition for Declaratory Relief,

Injunctive Relief and Writ of Mandamus, (collectively “Petitions”) as true. “We

construe the pleadings liberally in favor of the plaintiff, look to the pleader’s

intent, and accept the pleadings’ factual allegations as true. Tex. Dep’t of Parks

& Wildlife v. Miranda¸133 S.W.3d 217, 226 (Tex.2004).” Tarrant County v.

McQuary, 310 S.W.3d 170, 173 (Tex.App.-Fort Worth (2010).

      Substantive facts plead by Melissa include:

      (1)   in 2011, several of Melissa’s children, including her special needs

            daughter (“A.G.”) were at the center of a DFPS investigation

            (“2011 Investigation”); CR 4, 172;

      (2)   On October 13, 2011 (CR 223 – 226, 316-319) and October 14,

            2011 (CR 208-213, 301-306) Melissa’s husband wrote letters

            including a Public Information Request regarding the 2011

            Investigation to DFPS personnel.

      (3)   On October, 25, 2011, attaching Melissa’s husband’s October

            13, 2011 and October 14, 2011 to an email, DFPS attorneys and



                                     -2-
             others scheduled a “high level review” relative to the 2011

             Investigation “not so much…about specifics of these recent

             investigations. . .but rather how this matter ties into the overall

             general litigation.” CR 174, 207, 259, 264, 3001

       (4)    or about November 7, 2012, Melissa requested specific documents

             and information from DFPS pursuant to the Texas Public

             Information Act, TEX. GOV’T. CODE ANN. § 552.001, et. seq.

             (West Supp. 2014), (“TPIA”) in regard to the 2011 Investigation

             (“Melissa’s Request”); CR 171, 178-79;

       (5)   on or about November 20, 2012, DFPS requested an Open Records

             Decision of the Office of the Attorney General (“OAG”) regarding

             Melissa’s Request (“DFPS’ Request”); CR 172, 182-86;

       (6)   on or about January 17, 2013, the OAG responded to DFPS’

             Request with its Open Records Decision (“Decision”) directing

             DFPS to turn over the requested documents and information

             (“Information”) to Melissa; CR 172-73, 374-76;

1
  CR 207 and CR 300 both are the October 25, 2011 e-mail showing the attached letters.
CR207-258 is Exhibit J for Plaintiff’s Supplement to First Amended Petition including
both letters and documents sent by Plaintiff’s husband with each of those letter. Ex J is
referenced in the document (CR 174) but not clearly labeled as an exhibit. It follows Ex.
I, but does not have its own label as Ex. J. The same documents comprise Ex. J for
Plaintiff’s Response to Defendants’ Amended Motion for Summary Judgment. This
Exhibit J is not only referenced in the document (CR 264), but clearly marked as Exhibit
J (CR 300-351) among the other exhibits.


                                          -3-
(7)   on or about January 22, 2013, Melissa inquired with DFPS as to

      when she could expect to receive the responsive Information

      required by the OAG’s Decision. CR 5, 378;

(8)   on or about March 5, 2013, Melissa’s husband, Gary, wrote to

      DFPS inquiring whether or not DFPS would provide the

      Information, and if not, then to provide the statute, rule, and/or

      policy under which DFPS was electing to withhold the Information

      in defiance to the OAG’s Decision; CR 5, 31;

(9)   on or about March 12, 2013, Jonathan Miles, Open Government

      Attorney for DFPS, responded by advising that a mistake had been

      made in submitting DFPS’ Request to the OAG and that DFPS

      would not be producing the Information; CR 5-6, 33;

(10) on or about July 10, 2013, Melissa filed her Petition for Declaratory

      Relief and Writ of Mandamus; CR 55-61, 173;

(11) on or about August 8, 2014, over twenty months after the initial

      submission of Melissa’s Request, Appellees finally responded with

      document production; CR 6, 41;

(12) on September 2, 2014 Melissa wrote to DFPS explaining that not

      all pages/attachments had been produced and requesting a further

      check by DFPS regarding those documents; CR 6-7, 42; and,



                              -4-
       (13) on November 25, 2014, Appellees supplemented their response by

             providing additional documents. CR 7, 46-8.

                                 Procedural Facts

       The following procedural facts are established by virtue of the Clerk’s

Record:

       (1)   Appellees filed a Plea to Jurisdiction and Amended Plea to

             Jurisdiction (collectively “Plea”) on April 28, 2015 and April 29,

             2015, respectively; CR 49-167, 112-16, 267;

       (2)   Melissa filed her Plaintiff’s First Amended Petition for Declaratory

             Relief and her Plaintiff’s Supplement to First Amended Petition for

             Declaratory, Injunctive Relief and Writ of Mandamus on April 28,

             2015 and May 18, 2015, respectively; CR 3-10, 168-77 2;

       (3)   on May 26, 2015, Melissa filed her Plaintiff’s Response to

             Defendants’ Amended Plea to the Jurisdiction; CR 259-70 3;

       (4)   on June 9, 2015, Melissa filed her Plaintiff’s Supplement to

             Plaintiff’s Response to Defendants’ Amended Plea to the

             Jurisdiction; CR 432-39;

       (5)   on June 11, 2015, Appellees filed their Defendants’ Reply in
2
  Plaintiff’s Supplement to First Amended Petition includes Exhibit J, (CR 207-258), the
very significant October 25, 2011internal DFPS e-mail to this case referenced above.
3
  Plaintiff’s Response to Defendants’ Amended Plea to Jurisdiction includes Exhibit J,
(CR 300-351), the very significant October 25, 2011internal DFPS e-mail to this case
referenced above.


                                         -5-
            Support of Amended Plea to Jurisdiction; CR 440-45;

      (6)   on July 9, 2015, the trial court granted the Appellees’ Plea and

            signed its final Order; CR 446, APP.;

      (7)   on August 3, 2015, Melissa filed her Motion for New Trial; CR

            447-57; and,

      (8)   on September 23, 2015, the trial judge denied Melissa’s Motion for

            a New Trial. CR 515.

                     SUMMARY OF THE ARGUMENT

      This honorable Court is required to make a de novo review of Melissa’s

live pleadings to determine whether the trial court erred in granting the Plea. In

its review, this honorable Court should find the trial court erred in granting the

Plea due the presence of live controversies regarding (1) whether or not Melissa

should be denied standing to seek redress/remedy when Appellees intentionally

delayed in complying with the TPIA in order to gain a tactical advantage and/or

a perceived tactical advantage in separate and concurring litigation; and, (2)

whether or not Melissa can recover attorneys’ fees under the Uniform

Declaratory Judgments Act, TEX. CIV. PRAC. & REM. CODE Chapter 37

(West Supp. 2014) (“UDJA”). Furthermore, this honorable Court should find

the trial court erred in granting the Plea by failing to distinguish the troubling

facts of this case from those cases that Appellees’ mistakenly relied upon in



                                     -6-
their Plea. Alternatively, this honorable Court should find the trial court erred

in granting the Plea for lack of subject matter due to the presence of facts that

sufficiently meet mootness doctrine exceptions.

                     ARGUMENT AND AUTHORITIES

                          APPELLATE STANDARD

                               Plea to Jurisdiction

      “A plea to the jurisdiction is a dilatory plea, the purpose of which is to

defeat a cause of action without regard to whether the claims asserted have

merit.” Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554

(Tex.2000). A trial court’s subject matter jurisdiction can be contested by a

plea to jurisdiction. See Texas Department of Transp. v. Jones, 8 S.W.3d

636, 638 (Tex.1999) (per curium). The existence of subject matter

jurisdiction is a question of law and is reviewed de novo. See Tex. Natural

Res. Conservation Comm’n v. IT-Davey, 74 S.W.3d 849, 855 (Tex.2002). A

plaintiff has the burden to allege facts that affirmatively demonstrate that the

trial court has subject matter jurisdiction and the trial court, in deciding the

issue of subject matter jurisdiction, must look solely to the allegations in the

petition and must accept them as true. See Harris County v. Proler, 29

S.W.3d 646, 647 (Tex.App.—Houston [14th Dist] 2000, no pet.).                  In

reviewing a trial court’s order granting a plea to the jurisdiction, it is not the



                                       -7-
appellate court’s task to determine whether the plaintiff ultimately wins or

loses upon judicial review, but to examine the petition and to take as true the

facts pled. University of Tex. Med. Branch v. Hohman, 6 S.W.3d 767, 771

(Tex.App.– Houston [1st. Dist.] 1999, pet. dism’d w.o.j.) (op. on reh’g).

The appellate courts are required to construe the pleadings in favor of the

plaintiff and look to the pleader’s intent when reviewing a case dismissed for

lack of subject matter. Tex. Ass’n of Bus.v. Tex. Air Control Bd., 852 S.W.2d

440, 446. In deciding the issue of jurisdiction, the reviewing court is not

permitted to either examine or weigh the merits of the case, but may look at

the evidence only when necessary to resolve the jurisdictional issue;

however, such a review must be confined solely to the issue of jurisdiction.

County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Blue, 34

S.W.3d at 555.

      APPLYING STANDARD OF REVIEW TO THE PLEADINGS

      To properly apply the de novo standard of review, this honorable Court is

required to examine the facts pled in Melissa’s live pleadings and to take those

facts as true. Hohman, 6 S.W.3d at 771. To facilitate this obligation, Melissa

would show that her Petitions are the operative pleadings for this Court’s de

novo review. The filings of the Petitions were timely even though they were

filed subsequent to the filing of the Plea. Grand Prairie Hosp. Authority



                                     -8-
v. Tarrant Appraisal Dist., 707 S.W.2d 281, 283 (Tex.App.—Fort Worth 1986,

writ ref’d n.r.e.).

       Based upon the foregoing, this honorable Court should look to the

Petitions in making its de novo review to determine whether the trial court has

subject matter jurisdiction.

     DO THE PLEADINGS, TAKEN AS TRUE, CONFER SUBJECT
       MATTER JURISDICTION UPON THE TRIAL COURT?

       In reviewing the Petitions, this honorable Court must simply answer the

question—do the facts, as pled and taken as true, support subject matter

jurisdiction in the trial court?       Proler, 29 S.W.3d 647. If, in answering this

question, this Court finds that the facts pled do indeed support subject matter

jurisdiction, then the trial court’s final Order granting the Plea must be set aside

and this cause must be remanded.4

                      Facts pled and which must be taken as true

       The Petitions allege the following facts, which must be considered by

this Court as true:



4
  Although this Brief does not specifically address every fact and claim pled by Melissa in
her Petitions, Melissa does not intend to waive any omitted facts or claims pled in her
Petitions. This Court, in its de novo review, is required to look at the entirety of Melissa’s
Petitions regardless of whether each fact and claim is specifically addressed in this Brief. In
considering Melissa’s Petitions, this Court must construe them liberally in Melissa’s favor,
look to Melissa’s intent, and determine if Melissa has alleged facts affirmatively
demonstrating the court’s jurisdiction. See City of Elsa v. Gonzalez, 325 S.W.3d 622, 625
(Tex.2010).


                                           -9-
1.   Melissa’s special needs daughter and other children were the

     subjects of a DFPS investigation in 2011; CR 172;

2.   Melissa’s husband wrote letters on October 13, 2011 (CR 223 –

     226, 316-319) and October 14, 2011 (CR 208-213, 301-306)

     including a Public Information Request regarding the 2011

     Investigation to DFPS personnel; no responsive documents were

     received.

3.   On October, 25, 2011, in an internal e-mail responsive to the

     letters of October 13, 2011 and October 14, 2011, DFPS attorneys

     and other executives scheduled a “high level review” relative to

     the 2011 investigation to determine how this matter (the 2011

     Investigation) fits into overall general litigation with the Gates

     family. CR 207, 300;

4.   on or about November 7, 2012, Melissa requested Information

     from DFPS pursuant to the TPIA under Chapter 552 of the Texas

     Government Code; CR 5, 12-13;

5.   the requested Information was material and could have been used

     to help establish the violation of Melissa’s substantive right to

     direct the education and moral training of her daughter, A.G. and

     protect her other children; CR 172;



                            - 10 -
6.   the requested Information was material to help try and protect

     Melissa’s familial integrity; CR 172;

7.   the requested Information was material to try to protect Melissa’s

     special needs adult daughter; CR 172;

8.   concurrent to Melissa’s Request, Melissa and/or her husband were

     involved in pending litigation with Appellees regarding the

     improper placement and/or retention of their names in DFPS’

     central registry (“Registry Case”); CR 171;

9.   on or about November 20, 2012, Appellees requested an Open

     Records Decision from the OAG regarding Melissa’s Request; CR

     172, 182-84;

10. on or about January 17, 2013, the OAG Decision directed

     Appellees to release the Information to Melissa; CR 172-73, 193-

     95;

11. Appellees failed to file a suit for judicial review of the OAG’s

     Decision within the legal timeframe prescribed by TEX. GOV’T

     CODE ANN. § 552.324(b) (West Supp. 2014); CR 8;

12. Appellees’ failure to timely file a suit for judicial review resulted

     in the automatic waiver of its objections to the OAG’s Decision.




                             - 11 -
               TEX. GOV’T CODE ANN. § 552.324(b) (West Supp. 2014); CR

               8;

        13. Appellees’ failure to timely file a suit for judicial review resulted

               in mandating Appellees’ full compliance with OAG’s Decision.

               TEX. GOV’T CODE ANN. § 552.324(b) (West Supp. 2014); CR

               8;

       14.     on or about March 12, 2013, Appellees advised Melissa’s husband

               that Appellees had made a mistake in requesting an opinion from

               the OAG regarding Melissa’s Request; CR 5-6, 89;

       15.     on or about March 12, 2013, Appellees advised Melissa’s husband

               that Appellees would not be producing the Information; CR 5-6,

               89;

       16.     instead of complying with the TPIA by filing a suit for judicial

               review, Appellees intentionally acted extra-statutorily by asserting

               a different argument to Melissa’s Request 5; CR 8, 96-97;

       17.     Appellees refused to comply with the OAG’s Decision for 21

               months 6; CR 169, 171;

5
  After the ten-day period prescribed for making its request to the OAG, Appellees were
proscribed from invoking a different reason than that which it made to the OAG within
the ten-day period. If a specific prospective right to withhold information is not presented
to the OAG within ten days after the agency receives the request, “the information is
presumed public.” City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 citing
City of Houston v. Houston Chronicle Pub. Co., 673 S.W.2d 316, 324 (Tex.App.–
Houston [1st Dist.] 1984, no writ).


                                           - 12 -
       18.    Appellees refused to provide the Information responsive to

              Melissa’s Request for 21 months; CR 169, 171;

       19.    Appellees violated the OAG’s Decision; CR 8;

       20.    Appellees violated the TPIA; CR 8;

       21.    Appellees withheld public information, which could have been

              used to establish a violation of constitutional liberty interest in the

              Registry Case; CR 7;

       22.    Appellees’ ignored their duty to produce public information

              because of their concern that the release of the Information would

              strengthen the Registry Case; CR 171; and,

       23.    Appellees withheld timely production of the Information in order

              to gain a tactical advantage and/or perceived tactical advantage in

              the Registry Case 7. CR 5-7, 9, 168-74, 207, 259, 261-64, 300,

              432-34.


6
  Under the TPIA, public information must be promptly produced. “‘[P]romptly’ means
as soon as possible under the circumstances, that is, within a reasonable time, without
delay.” TEX. GOV’T CODE ANN. § 552.221(a) (West Supp. 2014).
7
  The referenced case deals with Texas Constitutional issues regarding the DFPS central
registry. Evidence of substantive rights violated by DFPS would be important on the
process owed by DFPS in maintaining questioned registry findings. In the case at hand,
Plaintiff alleges that DPFS ignored its duty to produce public information because of
DFPS' concerns that the release of the documents would strengthen the right to registry
process claims. See Gary W. Gates, Jr. v. Texas Department of Family and Protective
Services and Anne Heiligenstein, Commissioner, Cause No. D-1-GN-11-002300, 53rd
Judicial District Court, Travis County, Texas currently on appeal to the Third Court of
Appeals, Cause No.03-13-00369-CV. Oral arguments have been heard, but as of the date
of this filing no decision has been rendered.


                                        - 13 -
                                 Causes of action pled

        By way of her Petitions, Melissa seeks redress for DFPS’ failure to

comply with the OAG’s Decision and the TPIA in order to gain a tactical

advantage and/or perceived tactical advantage in the pending Registry Case. 8

CR 5-7, 9, 168-74, 207, 259, 261-64, 300, 432-34. Melissa seeks declarations

regarding the past violations of Appellees and a writ of mandamus and/or

injunctive relief requiring Appellees to comply with the TPIA in the future.9

CR 9-10; 174-76. Melissa additionally seeks to recover her reasonable costs of

litigation and attorneys’ fees incurred by her in prosecution of this action. CR

9-10.


8
  “[The TPIA] is aimed at preserving the fundamental tenet of representative democracy:
‘that the government is the servant and not the master of the people.’” Jackson v. State
Office of Administrative Hearings, 351 S.W.3d 290, 293 (Tex.2011) quoting TEX.
GOV’T CODE § 552.001(a). “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 Supp. 2014) (emphasis added).
9
  In effect, failure to hold Appellees accountable in this manner enables Appellees and
numerous other government entities to violate with impunity a cardinal principle of the
Public Information Act: timely production of documents. While case law cited by
Appellees (Tex. State Bd. Vet. Med. Examiners v. Giggleman, 408 S.W.3d 696
(Tex.App.–Austin 2013) or City of El Paso v. Abbott, 444 S.W.3d 315 (Tex.App.–Austin
2014, pet. denied)) may legitimately offer freedom to produce documents at a later time
and avoid liability in narrow circumstances, opening the door widely under facts such as
the case at hand effectively enables Appellees and other government entities “to function
in two inconsistent legal roles - those of advocate and judge.” See ORD 673, p. 5. CR
201-202, 294-295. First, they act as advocate in presenting their case to the Office of the
Attorney General, but then following the Attorney General’s decision effectively act as
judge deciding whether or not to comply in a timely manner. In the case at hand,
Appellees violated the Attorney General’s decision (unlike government entities in
Giggleman or Abbott as explained below) for over twenty one (21) months then presented
their “get out of jail free” card before a final judgment could be rendered.


                                          - 14 -
  TRIAL COURT ERRED IN DISMISSING CASE AND DENYING
  MELISSA’S ATTORNEYS’ FEES FOR MOOTNESS/LACK OF
     SUBJECT MATTER DUE TO LIVE CONTROVERSIES

                Live Controversy as to Substantive Issues

      A case is moot if a controversy no longer exists or the parties lack

a legally cognizable interest in the outcome. Allstate Ins. Co. v. Hallman,

159 S.W.3d. 640, 642 (Tex.2005). A justiciable controversy exists if a real

and substantial controversy involving a genuine conflict of tangible interests

is present. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.1995).

      A live controversy continues to exist as to whether or not Appellees

can withhold prompt production of public information for tactical litigation

purposes, and later claim the courthouse is closed to Melissa due to

mootness. CR 5-7, 9, 168-74, 207, 259, 261-64, 300, 432-34. More

specifically Melissa has requested declarations as to whether:

      1.    Appellees can violate the TPIA for tactical litigation purposes;

            CR 5-7, 9, 168-74, 207, 259, 261-64, 300, 432-34;

      2.    Melissa can be denied standing to seek redress/remedy for

            Appellees’ violation of the TPIA for tactical litigation purposes;

            CR 5-7, 9, 168-74, 207, 259, 261-64, 300, 432-34;

      3.    a claim of sovereign immunity can bar Melissa from access to

            the courthouse when the facts pled by Melissa state that the



                                    - 15 -
     government actors defied/ignored the TPIA and OAG’s

     Decision for tactical and/or perceived tactical litigation

     purposes; CR 5-7, 9, 168-74, 207, 259, 261-64, 300, 432-34;

4.   Melissa’s   husband    can      be   denied   standing   to   seek

     redress/remedy for Appellees’ violation of her due process/due

     course of law right to being heard in a meaningful way in the

     pending Registry Case; CR 4-5, 7-10, 169, 171, 174-75, 432-

     434, 447-48, 453;

5.   Melissa can be denied standing to pursue redress/remedy for

     Appellees’ violation of Melissa’s due process/due course of law

     right to fundamental fairness; 4-5, 7-10, 169, 174-75, 432-435;

6.   Melissa can be denied standing to pursue redress/remedy for

     Appellees’ failure to promptly produce Information that was

     material to try and protect Melissa’s substantive right to direct

     the education and moral training of her daughter; CR 4, 172,

     175, 263, 433;

7.   Melissa can be denied standing to pursue redress/remedy for

     Appellees’ failure to promptly produce Information that was

     evidence useful to help try and protect Melissa’s familial

     integrity; CR 4-5, 172, 175, 263, 433-34; and,



                            - 16 -
      8.     Melissa can be denied standing to pursue redress/remedy for

             Appellees’ failure to promptly produce Information that could

             have contributed towards determining her constitutional claims

             regarding the retention or removal of her name in the central

             registry. CR 5, 7, 171-75, 262-63, 437, 447, 456.

      Since Melissa has pled that she has legally cognizable rights, the trial

court erred in dismissing the case as moot. Melissa’s live pleadings establish

subject matter jurisdiction; and therefore, the trial court’s final judgment should

be reversed and must be remanded for consideration and determination.

                  Live Controversy as to Attorneys’ Fees

      Additionally, a live controversy exists as to whether or not Melissa

has a legally cognizable interest in recovering her attorneys’ fees. CR 7-10;

169-71; 433; 438; 453. See Camarena v. Texas Employment Commission,

754 S.W.2d 149, 151 (Tex.1988) (held that case was not moot due to the

existence of the live issue of attorney’s fees); see also: Labrado v. County of

El Paso, 132 S.W.3d 581, 589-90 (Tex.App.–El Paso 2004, no pet.).

      Melissa has pled for recovery of her attorneys’ fees under the UDJA.

CR 7-10, 174, 438. The purpose of the UDJA “is to settle and to afford relief

from uncertainty and insecurity with respect to rights, status, and other legal

relations; and it is to be liberally construed and administered.” TEX. CIV.



                                     - 17 -
PRAC. & REM. CODE § 37.002(b) (West Supp. 2014). Melissa’s Petitions

affirmatively allege that Appellees interfered with Melissa’s legal rights

and/or privileges by refusing to release public information that could have

been used in the Registry case to establish violations of substantive due

process right and constitutional liberty interests; CR 4-5, 7, 171-175, 262-63,

433, 447-48; therefore, Melissa is entitled to seek declaratory relief,

including the recovery of her attorney fees’, under the UDJA.10

       Appellees’ interference with Melissa’s legal rights and privileges,

including her right to recover attorneys’ fees as a result of Appellees’

calculated violation of the TPIA for 21 months are integral parts of

Melissa’s claims; and therefore, prevent this case from being moot. See

Camarena 754 S.W.2d at 151.



10
   In their argument for denying Melissa’s attorneys’ fees, Appellees’ point to the rulings
in Tex. State Bd. Vet. Med. Examiners v. Giggleman, 408 S.W.3d 696 (Tex.App.–Austin
2013) and Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290
(Tex.2011)(holding that Plaintiff seeking relief falling squarely under TPIA cannot seek
attorneys’ fees award under UDJA). CR 114. In both Giggleman and Jackson, however,
the governmental entities operated within the legal parameters of the TPIA by relying on
OAG decisions. Giggleman, 408 S.W.3d at 699; Jackson, 351 S.W.3d at 292. The
undisputed fact that Appellees’ violated the TPIA by spurning the OAG Decision and
refusing to promptly produce the Information, delaying the production for 21 months
solely for tactical litigation purposes distinguishes this case from Giggleman and
Jackson. CR 170-74. Appellees’ violation of the TPIA interfered with and violated
Melissa’s legal rights to due process/due course of law. CR 4, 171-75. Therefore, it is
proper for Melissa to seek recovery of her attorneys’ fees under the UDJA.




                                          - 18 -
    TRIAL COURT ERRED IN FAILING TO DISTINGUISH THE
   DISTINCT FACTS OF THIS CASE FROM CASES APPELLEES
         MISTAKENLY RELIED UPON IN THEIR PLEA

      Appellees rationalized their actions and established their mootness

argument by relying on two TPIA cases: City of El Paso v. Abbott, 444

S.W.3d 315 (Tex.App.–Austin 2014, pet. denied) and Giggleman, 408

S.W.3d 696. CR 52, 114-15, 169-171, 441-43. Appellees’ calculated

withholding of public information in this case is radically distinct from the

cooperative government conduct evident in both Abbott and Giggleman.

Melissa’s live pleadings reveal a bright line distinction between this case and

the rationale of Abbott and Giggleman. CR 169-71.

      A. City of El Paso v. Abbott

      In Abbott, the City sought an opinion from the OAG to determine if it

must release specific information. Abbott, 444 S.W.3d at 318. The OAG

determined the information should be released to the requestor; the City then

timely filed a suit seeking judicial review of the OAG’s opinion pursuant to

TEX. GOV’T CODE ANN. § 552.324(b). Id. During the pendency of the

judicial review, the City withdrew its challenge and voluntarily produced the

information per the OAG’s ruling. Id. at 319. The Abbott Court held that the

City was not “refusing” to supply information that the OAG had determined

was public information, and therefore, under the principles of sovereign



                                     - 19 -
immunity, the district court lacked subject matter jurisdiction. Id. at 322,

324, 327.

      The Abbott Court held that a governmental entity waives its sovereign

immunity for mandamus under the TPIA when it “refuses” to supply public

information. Id. at 324. “‘Refuse’ in this context means to ‘show or express

a positive unwillingness to do or comply with.’” Id. (quoting Webster's

Third New Int'l Dictionary 1910 (2002)). After obtaining an unfavorable

opinion from the OAG, Appellees, unlike the City in Abbott, “refused” to

operate within the structure of the legal process (1) by wholly failing to file a

suit for judicial review or (2) by promptly producing the requested

information. TEX. GOV’T CODE ANN. §§ 552.324(b) and 552.221(a)

(West Supp. 2014); CR 8, 169-71. Melissa’s Petitions further establish that

Appellees showed a “positive unwillingness” to comply by (1) spurning the

OAG’s Decision; CR 8, 89; (2) violating the TPIA; CR 8, 89; and, (3)

withholding the requested documents for 21 months in order to gain a

tactical advantage and/or a perceived tactical advantage in the Registry Case.

See Abbott at 324. CR 5-7, 9, 168-74, 207, 259, 261-64, 300, 432-34.

Melissa’s Pleadings effectively demonstrate that Appellees’ waived their

sovereign immunity for mandamus by “refusing” and showing a “positive

unwillingness” to comply with TPIA.



                                      - 20 -
      B. Tex. State Bd. Vet. Med. Exams v. Giggleman

      Appellees’ Plea requested the trial court to extend the Giggleman

rationale to this case; however, like Abbott, the Giggleman facts are

markedly distinct from the facts in this case. CR 52-53, 169-71, 259, 261,

435, 441-43, 448, 451-53.

      In Giggleman, the Texas State Board of Veterinary Medical

Examiners (“Board”) sought an opinion from the OAG regarding whether

certain exhibits, as confidential documents, were exempt from disclosure.

Giggleman, 408 S.W.3d at 699. The OAG, unlike in the present case,

decided the exhibits were protected and did not have to be disclosed to

Giggleman. Id. Giggleman then filed suit seeking a writ of mandamus to

compel the agency to release the exhibits and to recover attorney fees under

the UDJA. Id. at 699-700. Both parties submitted summary judgments

regarding Giggleman’s mandamus claim. Id. at 700. The district court

granted Giggleman’s summary judgment and denied the Board’s. Id. Prior

to a final hearing, the Board, consistent with the court’s decision, produced

all the exhibits Giggleman had originally sought. Id. at 702. The appellate

Court later held that the district court lacked subject matter jurisdiction to

grant Giggleman’s claims for attorney fees. Id. at 709.




                                    - 21 -
      Relying on the Giggleman rationale and by way of their Plea,

Appellees assert that Melissa should be denied attorneys’ fees and her case

should be dismissed for mootness because all the Information has been

‘voluntarily’ released. CR 114-15. The trial court, however, failed to

delineate, unlike Giggleman, in which the government entity “reasonably

relied on Attorney General decisions in withholding” the requested

information (Id. at 699, 701), that Appellees knowingly violated the OAG

Decision and TPIA by refusing to release the Information for 21 months in

order to gain a tactical advantage and/or a perceived tactical advantage in the

Registry Case. CR 5-7, 9, 168-74, 207, 259, 261-64, 300, 432-34. Melissa’s

Petitions establish that Appellees’ actions adversely affected Melissa and

violated her constitutional rights to fundamental fairness and being heard in

a meaningful way in the pending Registry Case. CR 3-5, 7-10, 170-72, 174-

75.

      C. Abbott and Giggleman are not on point, and thus do not
      establish mootness/lack of subject matter jurisdiction

      Appellees’ Plea wrongly relies on Abbott and Giggleman to support

the mootness claim. In both Abbott and Giggleman, the government entities

operated within the legal parameters of the TPIA; however, Melissa’s

Petitions specifically demonstrate in the present case that Appellees:




                                     - 22 -
      (1)   expressed a “positive unwillingness” to promptly release the

            Information; CR 169-171;

      (2)   failed to seek judicial review of the OAG’s decision; CR 8;

      (3)   failed to promptly release the Information; CR 169, 171;

      (4)   waived its objections to the OAG’s decision; CR 8;

      (5)   acted extra-statutorily by asserting a different argument to

            Melissa’s Request; CR 8, 96-97;

      (6)   violated the OAG’s decision; CR 8;

      (7)   violated the TPIA; CR 8;

      (8)   delayed the release of Information to gain a perceived tactical

            advantage in the Registry Case; CR 5-7, 9, 168-74, 204-205,

            207, 259, 261-64, 300, 432-34; and,

      (9)   adversely affected Melissa. CR 3-5, 7-10, 170-72, 174-75.

      Melissa’s Petitions reveal the stark factual difference between the case

at bar and Abbott and Giggleman, the cases relied upon by Appellees in their

Plea. The trial court failed to recognize the critical difference between the

facts of this case and the facts of Abbott and Giggleman, differences over

which the trial court has subject matter jurisdiction. Accordingly, the trial

court’s judgment should be reversed and must be remanded for further

consideration and determination.



                                    - 23 -
         MOOTNESS STANDARD DOCTRINE EXCEPTIONS

       Alternatively, Melissa asserts the existence of the following

recognized exceptions to the mootness standard doctrine: (1) the public

interest exception; (2) the collateral consequences exception; and/or (3) the

capable of repetition yet evading review exception. CR 434-38, 448, 454-55.

These applicable exceptions, singularly or collectively, confer subject matter

jurisdiction upon the trial court.

                            Public Interest Exception

       The public interest exception “allows appellate review of a question of

considerable public importance if that question is capable of repetition

between either the same parties or other members of the public, but for some

reason evades appellate review.” 11 Securtec, Inc. v. County of Greg, 106

S.W.3d 803, 810-811 (Tex.App.–Texarkana 2003, pet. denied).

       A. Appellees’ actions are a matter of public importance

       The trial court failed to recognize that Appellees’ actions are a matter

of public importance since the public is afforded the rights to public

documents under the TPIA. The avenue available to the public for obtaining


11
  Though the Texas Supreme Court has yet to rule on the viability of the public interest
exception, multiple Texas appellate courts already recognize the public interest
exception. See University Interscholastic League v. Buchanan, 848 S.W.2d 298, 304
(Tex.App.–Austin 1993, no writ); Ngo v. Ngo 133 S.W.3d 688, 691 (Tex.App.–Corpus
Christi-Edinburg 2003, no pet.); and, Securtec, Inc. v. County of Gregg, 106 S.W.3d 803,
810-811 (Tex.App.–Texarkana 2003, pet. denied).


                                         - 24 -
public documents is governed by the TPIA. The fact that Appellees, as a

governmental body, are duty-bound to follow the TPIA is a matter of public

interest. The Securtec court in recognizing the public interest exception held

the exception applicable “because Gregg County is a governmental body

that is required to follow the Texas Local Government Code when accepting

bids for construction contracts.” Id. at 811. Like Securtec, this case is a

matter of public importance because Appellees, like Gregg County,

comprise a governmental body that is mandated to follow the TPIA in

releasing information to members of the public.

      B. Appellees’ actions are capable of repetition and evade appellate
         review

      Appellees’ actions are capable of repetition between Melissa and/or

other members of the public who seek to address public interest questions or

obtain information by way of the TPIA. CR 260-61, 436. Members of the

public could easily find themselves in the same position as Melissa should

Appellees refuse to release public information until a convenient time and

then play the “mootness doctrine” card, thus rendering all declaratory

actions and attorney fee claims against them as moot, and ultimately,

evading appellate review. Procedurally the impact of Giggleman as argued

by Appellees would yield the same result: the government body may

initially submit a request to the Attorney General, but if it does not like the

                                      - 25 -
response, simply choose to hold onto the documents indefinitely, causing

prolonged litigation and then at a time that it determines to be opportune, i.e.

just before a dispositive hearing, turn over the documents. In effect it acts as

both advocate and judge.

       The trial court’s granting of Appellees’ Plea has the ultimate effect of

evading appellate review of the Appellees’ unlawful actions.         This same

issue was recognized and address by the Securtec court.

      It is possible future parties could find themselves in the same
      position as Gregg County and Securtec because the
      performance of a similar construction contract may likely occur
      before adjudication of a similar suit. ... Therefore, despite the
      contract for the Gregg County jail having already been
      performed, we will address whether summary judgment was
      appropriate. Id.

      Like Securtec, the facts of this case sufficiently meet the public

interest exception requirements of (1) public importance; (2) capable of

repetition; and, (3) evasion of appellate review. Id. at 810-811. Therefore,

the trial court erred in concluding that none of these exceptions apply.

                    Collateral Consequences Exception

      The “collateral consequences” exception applies when “prejudicial

events have occurred whose effects continued to stigmatize helpless or hated

individuals long after the unconstitutional judgment had ceased to operate.

Such effects were not absolved by mere dismissal of the cause as moot.”



                                      - 26 -
Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 19 (Tex.App.–Houston

[1st Dist.] 1988, no writ).

      Melissa has pled that Appellees’ refusal to comply with the OAG

Decision and “positive unwillingness” to promptly release the Information

effectively prevented Melissa from accessing documents responsive to the

Registry Case. CR 169-74, 199.           Appellees’ refusal to release the

Information allowed Appellees to continue stigmatizing Melissa by

withholding documents that could have contributed towards determining her

constitutional claims regarding the retention or removal of her name in

DFPS’ child-abuse registry. See James v. Hubbard, 21 S.W.3d 558, 560-561

(Tex.App.–San Antonio 2010, no pet.) (Court held that case was not moot

because expired protective order based on family violence carries a

significant social stigma.) CR 7, 171-74, 199, 437, 456. It goes without

saying that having one’s name in the state child-abuse registry carries a

significant social stigma. Appellees’ refusal to comply with the OAG’s

decision and failure to promptly release the Information have adversely

affected Melissa’s collateral constitutional claims making this case anything

but moot. See State v. Lodge, 608 S.W.2d 910, 912 (Tex.1980). CR 174-75,

433-34.




                                    - 27 -
      The facts pled in this case sufficiently meet the collateral

consequences exception of the mootness doctrine. Therefore, the trial court

erred in granting Appellees’ Plea in light of this exception.

          Capable of Repetition yet Evading Review Exception

      The ‘capable of repetition, yet evading review’ entails two elements:

“(1) the challenged action was too short in duration to be litigated fully

before the action ceased or expired; and (2) a reasonable expectation exists

that the same complaining party will be subjected to the same action again.”

Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001); see also General Land

Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.1990); Blum v. Lanier,

997 S.W.2d 259, 264 (Tex.1999). The capable of repetition yet evading

review exception is applicable to challenges of unconstitutional acts

undertaken by governmental entities. OXY U.S.A., Inc., 52 S.W.3d at 571.

      A. Challenged action was too short in duration to be litigated fully

      Appellees simply refused to timely comply with the OAG Decision

and expressed a “positive unwillingness” to promptly release the

Information in order to gain a tactical advantage in the Registry Case. CR 4-

7, 9, 168-76, 199, 204-05, 207, 259, 261-264, 300, 432-434. Melissa, with

no other available recourse, challenged Appellees’ violation of the TPIA.

CR 173.       Twenty-one months after the OAG Decision, Appellees



                                     - 28 -
“voluntarily” released the requested Information, which resulted in the

granting of the Plea. CR 6, 41, 169-71. Between the time that Appellees’

“voluntary” released the Information and the granting of the Plea did not

give Melissa the time necessary to litigate her claims fully. Accordingly, the

trial court erred in allowing Melissa time to fully litigate her claim.

      B. A reasonable expectation exists that Melissa will be subjected
         to the same action again

      It can be reasonably expected that Melissa will be subjected to the

same action in the future. CR 260-61, 436, 455. Melissa has a legal right to

request information under the TPIA, and there is nothing to dissuade

Appellees from (1) ignoring OAG decisions; (2) refusing to abide by OAG

decisions; and, (3) avoiding any declaratory action and/or attorney fees by

eventually “voluntarily” releasing the requested information when they

deem necessary for their own benefit. Without allowing Melissa to fully

litigate Appellees’ unlawful actions, the trial court is giving Appellees a

“green light” to continue this untoward behavior on future requestors under

the TPIA, a “green light” that runs counter to the spirit of the law that “this

chapter shall be liberally construed in favor a granting a request for

information.” TEX.GOV’T CODE §552.001




                                      - 29 -
The facts pled in this case fulfill both elements of the ‘capable of repetition, yet

evading review’ exception to the mootness doctrine. Therefore, the trial court

erred in deeming Melissa’s claims as moot.

                                 CONCLUSION

      Upon the conclusion of its de novo review of Melissa’s Petitions, this

honorable Court should reach only one conclusion—that the trial court erred in

granting Appellees’ Plea.

                                    PRAYER

      For these reasons, Melissa requests that upon this honorable Court’s de

novo review of her Petitions, that the trial court’s final Order granting

Appellees’ Plea be reversed and that this cause, in its entirety, be remanded to

the trial court for further proceedings and for such other and further relief to

which Melissa may be justly entitled.

                                               Respectfully submitted,


                                         By:/s/ Thomas C. Sanders
                                            Thomas C. Sanders
                                            S.B.N. 17609900
                                            P. O. Box 1860
                                            Sugar Land, Texas 77487
                                            281/242-9700 Telephone
                                            281/242-8340 Facsimile
                                             tcsanders76@yahoo.com




                                      - 30 -
                                              Robert G. Gibson, Jr.
                                              S.B.N. 07873700
                                              P. O. Box 387
                                              Rosenberg, Texas 77471
                                              713/953-0500 Telephone
                                              713/953-0750 Facsimile
                                              rgglaw@juno.com

                                              ATTORNEYS FOR APPELLANT,
                                              MELISSA GATES

                    CERTIFICATE OF COMPLIANCE

      This certifies, pursuant to TEX. R. APP. P 9.4(i)(3), that this Brief has
been computer-generated and that the total word count calculated by the
computer used to generate those sections of this Brief as required by TEX.
R. APP. P 9.4(i)(1) is 6309 words.

                                        /s/ Thomas C. Sanders
                                        Thomas C. Sanders


                         CERTIFICATE OF SERVICE

      This certifies that the undersigned served this Brief of Appellant on the
Texas Department of Family and Protective Services and John Specia,
Appellees, by e-serving lead counsel for Appellees, Marc Rietvelt, Office of the
Attorney          General,          General         Litigation         Division
(Marc.Rietvelt@texasattorneygeneral.gov), on November 30, 2015.

                                        /s/ Thomas C. Sanders
                                        Thomas C. Sanders




                                     - 31 -
EXHIBIT 1




   - 32 -
DC   BK15197 PG1313




                      Melissa Gates v. TDFPS and
                              John Specia
                         EXHIBIT 1
                           Appellant's Brief




                                                   446
