                                                                                       ACCEPTED
                                                                                   01-12-00050-CV
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                              12/9/2015 5:34:23 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK




                        No. 01-12-00050-CV
                                                         FILED IN
  ______________________________________________________________
                                                   1st COURT OF APPEALS
                                                              HOUSTON, TEXAS
                                                           12/9/2015 5:34:23 PM
                    In the Court of Appeals for the
                                                           CHRISTOPHER A. PRINE
                   First District of Texas at Houston              Clerk
  ______________________________________________________________

                             CITY OF HOUSTON,
                                                                     Appellant
                                      V.

                  RANDALL KALLINEN AND PAUL KUBOSH,
                                                           Appellees
  ______________________________________________________________

     On Appeal from the 295th District Court of Harris County, Texas
                   Trial Court Cause No. 2008-75633
               Honorable Caroline Baker, Presiding Judge
  ______________________________________________________________

                   Supplemental Brief of Appellant
  ______________________________________________________________

Donna L. Edmundson                      Fernando De Leon
City Attorney                           Senior Assistant City Attorney
                                        SBN: 24025325
Judith L. Ramsey                        CITY OF HOUSTON LEGAL
Chief, General Litigation Section       DEPARTMENT
                                        900 Bagby Street, 4th Floor
                                        Houston, Texas 77002
                                        832.393.6491 (telephone)
                                        832.393.6259 (facsimile)
                                        fernando.deleon2@houstontx.gov

                            Attorneys for Appellant




                                                      Oral Argument Requested
                   Identity of Parties and Counsel

Appellant:           Trial & Appellate Counsel:

City of Houston      Judith L. Ramsey
                     Fernando De Leon
                     CITY OF HOUSTON LEGAL DEPARTMENT
                     900 Bagby Street, 4th Floor
                     Houston, Texas 77002
                     832.393.6491 (telephone)
                     832.393.6259 (facsimile)
                     judith.ramsey@houstontx.gov
                     fernando.deleon2@houstontx.gov

Appellees:           Trial & Appellate Counsel:

Randall Kallinen     Joseph R. Larsen
and Paul Kubosh      SEDGWICK LLP
                     1200 Smith Street, Suite 1600
                     Houston, Texas 77002
                     832.426.7020 (telephone)
                     877.527.1451 (facsimile)
                     joseph.larsen@sedgwicklaw.com

                     David A. Furlow
                     LAW OFFICE OF DAVID A. FURLOW, P.C.
                     4126 Rice Boulevard
                     Houston, Texas 77005
                     713.202.3931 (telephone)
                     866.382.0147 (facsimile)
                     dafurlow@gmail.com




                                 ii
                                          Table of Contents

                                                                                                       Page

Identity of Parties and Counsel ..................................................................... ii

Index of Authorities ................................................................................... vii
Record and Appendix Reference Key ........................................................... x

Statement of the Case .................................................................................. xi

Statement Regarding Oral Argument .......................................................... xii
Issues Presented ......................................................................................... xii

Introduction and Overview........................................................................... 1

Statement of Facts........................................................................................ 2

        A.      Only Kallinen submits TPIA Requests to City............................. 2

        B.      City releases 82% of requested documents. .................................. 2

        C.      Appellees sue City. .................................................................... 3

        D.      Appellees ensure Attorney General does not rule on City’s
                proper request. ........................................................................... 4

        E.      Trial court grants partial summary judgment to Appellees;
                City releases all documents held not excepted from
                disclosure. ................................................................................. 4

        F.      Trial court holds attorney fees hearing; enters final judgment
                for Appellees. ............................................................................ 5

        G.      City files plea and new trial motion contesting jurisdiction
                and fee award. ........................................................................... 6

        H.      Trial court modifies judgment, dismisses Kubosh, awards
                fees only to Kallinen .................................................................. 6

        I.      This Court rules for City; Texas Supreme Court disagrees. .......... 8



                                                     iii
Summary of Argument................................................................................. 8

Argument .................................................................................................. 11

I.      The trial court erred by denying the City’s plea and otherwise had
        no subject-matter jurisdiction over Appellees’ claims. ......................... 11

        A.      The trial court had no subject-matter jurisdiction because
                Appellees’ TPIA mandamus and attorney fee claims were
                not justiciable. ......................................................................... 11

                1.       Appellees’ TPIA mandamus and attorney fee claims
                         were no longer justiciable at the time of final judgment
                         because they were mooted when the City, prior to
                         final judgment, produced all withheld documents that
                         the trial court ordered the City to disclose. ....................... 11

                2.       As a result, the trial court had no subject-matter
                         jurisdiction because Appellees’ TPIA mandamus and
                         attorney fee claims were not justiciable at the time of
                         final judgment. ............................................................... 13

        B.      The trial court also had no subject-matter jurisdiction
                because all Appellees’ claims are barred by immunity. ............... 15

                1.       Appellees’ TDJA claims are barred by immunity
                         because they are redundant and duplicative of their
                         TPIA claims. .................................................................. 15

                2.       Appellees’ TPIA mandamus claims are also barred by
                         immunity because the TPIA does not waive the City’s
                         immunity and the only proper defendant for such
                         claims is the pertinent public information officer. ............. 17

                3.       Appellees’ TDJA claims are likewise barred by
                         immunity because the TDJA also does not waive the
                         City’s immunity and the only proper defendant for
                         such claims is the pertinent public information officer. ..... 20
                4.       As a result, the trial court also had no subject-matter
                         jurisdiction because all Appellees’ claims are barred by
                         immunity. ...................................................................... 21


                                                     iv
II.        The trial court erred by awarding attorney fees to Appellees
           because there was no evidence or insufficient evidence to support
           any award of fees to them. ................................................................. 22

           A.      Kallinen was not entitled to any award of attorney fees
                   because he did not actually incur any attorney fees—as
                   Kubosh incurred all the claimed fees. ........................................ 22

           B.      Appellees were not entitled to any award of attorney fees
                   because they failed to properly segregate recoverable
                   (alleged) fees from non-recoverable (alleged) fees. ..................... 24

           C.      Appellees offered no evidence or insufficient evidence to
                   support the amount of the award of attorney fees. ..................... 25
III.       The trial court also had no subject-matter jurisdiction over
           Kubosh’s claims; Kubosh’s TPIA mandamus and attorney fee
           claims were never justiciable due to lack of ripeness and standing
           because he never submitted any TPIA request to the City. .................. 28

Conclusion and Prayer ............................................................................... 29

Certificate of Compliance ........................................................................... 30

Certificate of Service .................................................................................. 31

Appendix

      A.        Order on Plaintiffs’ Summary Judgment (dated October 12, 2009)
                (CR.582)
      B.        Order Granting Plaintiffs’ Motion for Partial Summary Judgment
                and No-Evidence Partial Motion for Summary Judgment on
                Conceded Documents (dated October 12, 2009) (CR.583-85)
      C.        Order (dated December 8, 2009) (CR.931-32)
      D.        Order on City’s Motion to Strike Paul Kubosh (dated March 1,
                2010) (CR.969)
      E.        Final Judgment (dated October 12, 2011) (CR.1094-95)



                                                     v
F.   Order (dated January 5, 2012) (CR.1208)
G.   Amended Final Judgment (dated July 12, 2012) (CR[2].17-18)
H.   First Court of Appeals Judgment and Opinion (dated August 29,
     2013)
I.   Supreme Court Judgment and Opinion (dated March 20, 2015)
J.   Order for Supplemental Briefing On Remand




                                 vi
                                      Index of Authorities

                                                                                              Page(s)

Cases

A & T Consultants, Inc. v. Sharp,
   904 S.W.2d 668 (Tex. 1995) ................................................................... 18

BHP Petroleum Co., Inc. v. Millard,
  800 S.W.2d 838 (Tex. 1990) ................................................................... 16

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

Chenault v. Phillips,
  914 S.W.2d 140 (Tex. 1996) ................................................................... 15

City of El Paso v. Heinrich,
   284 S.W.3d 366 (Tex. 2009) ........................................................ 18, 19, 20

City of Houston v. Kallinen,
   414 S.W.3d 815 (Tex. App.—Houston [1st Dist.] 2013), rev’d, 462
   S.W.3d 25 (Tex. 2015) ............................................................................ xi

City of Houston v. Texan Land & Cattle Co.,
   138 S.W.3d 382 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ............ 16

DaimlerChrysler Corp. v. Inman,
  252 S.W.3d 299 (Tex. 2008) ................................................................... 14

Guthrie v. Garcia,
  352 S.W.3d 307 (Tex. App.—Houston [14th Dist.] 2011, no pet.) . 18, 19, 20

Int’l Grp. P’ship v. KB Home Lone Star L.P.,
    295 S.W.3d 650 (Tex. 2009) ................................................................... 12

Jackson v. State Office of Admin. Hearings,
   351 S.W.3d 290 (Tex. 2011) ........................................................ 16, 17, 23

Kallinen v. City of Houston,
  462 S.W.3d 25 (Tex. 2015)...................................................................... xi


                                                  vii
M.D. Anderson Cancer Center v. Novak,
  52 S.W.3d 704 (Tex. 2001)..................................................................... 13

MBM Fin. Corp. v. Woodlands Operating Co.,
  292 S.W.3d 660 (Tex. 2009) ................................................................... 16

Mission Consol. Indep. Sch. Dist. v. Garcia,
  253 S.W.3d 653 (Tex. 2008) ................................................................... 21

Patel v. Tex. Dep’t of Licensing & Regulation,
   469 S.W.3d 69 (Tex. 2015)..................................................................... 16

Patterson v. Planned Parenthood of Houston,
   971 S.W.2d 439 (Tex. 1998) ................................................................... 14

Rapid Settlements, Ltd. v. Settlement Funding, LLC,
  358 S.W.3d 777 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ............ 24

Reata Const. Corp. v. City of Dallas,
   197 S.W.3d 371 (Tex. 2006) ................................................................... 21

State Bar of Tex. v. Gomez,
   891 S.W.2d 243 (Tex. 1994) ................................................................... 14

Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
   852 S.W.2d 440 (Tex. 1993) ........................................................ 13, 14, 15

Tex. Dep’t of State Health Servs. v. Holmes,
   294 S.W.3d 328 (Tex. App.—Austin 2009, pet. denied) .......................... 20

Tex. Dep’t of Transp. v. Jones,
   8 S.W.3d 636 (Tex. 1999) ...................................................................... 21

Tex. Natural Res. Conservation Comm’n v. IT-Davy,
   74 S.W.3d 849 (Tex. 2002)..................................................................... 21

Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman,
   408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.)................. 11, 12, 13, 16

Tony Gullo Motors I, L.P. v. Chapa,
  212 S.W.3d 299 (Tex. 2006) ................................................................... 24




                                                viii
Williams v. Lara,
  52 S.W.3d 171 (Tex. 2000)................................................................ 14, 15


Constitution and Statutes
Tex. Const. art. XI, § 5 ................................................................................. x

Tex. Gov’t Code § 311.034 ......................................................................... 21

Tex. Gov’t Code § 552.003 .................................................................... 18, 28

Tex. Gov’t Code § 552.221 ......................................................................... 17

Tex. Gov’t Code § 552.321 .................................................................... 18, 28
Tex. Gov’t Code § 552.323 .............................................................. 11, 22, 26

Tex. Loc. Gov’t Code § 9.008 ....................................................................... x




                                                    ix
                    Record and Appendix Reference Key

      All record and appendix items are cited as follows:

“CR.[page]”                Clerk’s Record (filed January 26, 2012).

“CR[1].[page]”             1st Supplemental Clerk’s Record (filed June 6,
                           2012).

“CR[2].[page]”             2nd Supplemental Clerk’s Record (filed August 17,
                           2012).

“CR[3].[page]”             3rd Supplemental Clerk’s Record (filed April 12,
                           2013).

“CR[4].[page]”             [4th] Supplemental Clerk’s Record (filed June 5,
                           2013, but without designation as the “4th”
                           supplement).

“RR[1].[page]”             Reporter’s Record of October 6, 2010 trial court
                           hearing on Appellees’ attorney fee claim.

“RR[2].[page]”             Reporter’s Record of the December 12, 2011 trial
                           court hearing on the City of Houston’s motion for
                           new trial and plea to the jurisdiction.

“Ex. [number or letter]”   Exhibits to a specified Reporter’s Record.

“App. [letter]”            Items in the attached Appendix.




                                       x
                                   Statement of the Case

Nature of the case:             Randall Kallinen [Kallinen] and Paul Kubosh
                                [Kubosh] sued the City of Houston [City]1 seeking
                                mandamus relief under the Texas Public Information
                                Act [TPIA] to compel release of documents and
                                declaratory relief under the Texas Declaratory
                                Judgment Act [TDJA] to declare that release is
                                required. CR.2-8, 30-38.

Course of proceedings:          Kallinen and Kubosh [Appellees] filed a motion for
                                partial summary judgment. CR.648-54. On October
                                12, 2009, the trial court granted in part and denied in
                                part Appellees’ motion and ordered the City to
                                disclose certain documents. CR.582-85; App. A;
                                App. B. On October 12, 2011, the court entered a
                                final judgment reiterating its summary judgment
                                ruling and awarding attorney fees to Appellees
                                jointly. CR.1094-95; App. E.

                                The City filed a motion for new trial and plea to the
                                jurisdiction. CR.1103-47. On January 5, 2012, the
                                trial court denied the City’s plea and granted in part
                                and denied in part the City’s motion. CR.1208;
                                App. F.2
1
 The City is a Texas home-rule city operating under a municipal charter pursuant to Article
XI, Section 5, of the Texas Constitution. See Tex. Const. art. XI, § 5. In accordance with
Section 9.008(b) of the Texas Local Government Code, the City respectfully requests this
Court to take judicial notice of its published charter and status thereunder as a home-rule
city. See Tex. Loc. Gov’t Code § 9.008(b).
2
  In its original brief in this appeal (prior to the Supreme Court’s ruling), the City addressed
issues relating to the trial court’s original final judgment in an abundance of caution given
that it did learn that the trial court entered a modified final judgment until the day it filed its
original appeal brief. Although the modified final judgment is at issue here, the City
addresses issues relating to Kubosh also in an abundance of caution in the event that this
Court’s September 3, 2015 order (App. J) allowing supplemental briefing by the parties does
not contemplate the filing of a responsive brief by the City to Appellees’ supplemental brief.
In addition, for the same reason, to the extent that any of the City’s arguments as to
Kallinen also apply to Kubosh, the City addresses those arguments as to Appellees.




                                                xi
Trial court disposition:     On July 12, 2012, the trial court entered a modified
                             final judgment dismissing Kubosh due to lack of
                             standing and awarding attorney fees only to
                             Kallinen. CR[2].17-18; App. G. The City timely
                             appealed. CR.1213-14; CR[5].29-30.

Prior judgments by this      This Court reversed the trial court’s order denying
Court and Supreme            the City’s plea and rendered judgment dismissing
Court:                       Appellees’ claims against the City for want of
                             jurisdiction. See City of Houston v. Kallinen, 414
                             S.W.3d 815 (Tex. App.—Houston [1st Dist.] 2013),
                             rev’d, 462 S.W.3d 25 (Tex. 2015); App. H. The
                             Texas Supreme Court reversed this Court’s judgment
                             and remanded to this Court for further proceedings
                             in accordance with its opinion. See Kallinen v. City of
                             Houston, 462 S.W.3d 25 (Tex. 2015); App. I.

Current procedural           On September 3, 2015, this Court entered an order
posture:                     allowing the parties to file supplemental briefing to
                             aid this Court’s consideration of the issues on
                             remand. App. J.


                      Statement Regarding Oral Argument

      The City respectfully requests that the Court hear oral argument in this

appeal to allow the parties an opportunity to simplify and focus the issues for

the Court’s consideration.


                                  Issues Presented

      The trial court erred in denying the City’s plea to the jurisdiction and

motion for new trial for the following reasons:



                                         xii
1.   The trial court had no subject-matter jurisdiction over
     Appellees’ claims.

     a. The trial court had no subject-matter jurisdiction over
        Appellees’ TPIA mandamus and attorney fee claims because
        they were no longer justiciable at the time of final judgment;
        they were mooted when the City, prior to final judgment,
        produced to Kallinen all withheld documents that the trial
        court ordered the City to disclose.

     b. The trial court also had no subject-matter jurisdiction
        because all Appellees’ claims are barred by immunity.

        i. Appellees’ TDJA claims are barred by immunity because
           they are redundant and duplicative of their TPIA claims.

       ii. Appellees’ TPIA mandamus claims are also barred by
           immunity because the TPIA does not waive the City’s
           immunity and the only proper defendant for such claims
           is the pertinent public information officer.

      iii. Appellees’ TDJA claims are likewise barred by immunity
           because the TDJA likewise also does not waive the City’s
           immunity and the only proper defendant for such claims
           is the pertinent public information officer.

2.   The trial court erred by awarding attorney fees to Appellees
     because there was no evidence or insufficient evidence to
     support any award of fees to them.

     a. Kallinen was not entitled to any award of attorney fees
        because he did not actually incur any attorney fees—as
        Kubosh incurred all the claimed fees.

     b. Appellees offered no evidence or insufficient evidence to
        support the amount of the award of attorney fees.

3.   The trial court also had no subject-matter jurisdiction over
     Kubosh’s claims; Kubosh’s TPIA mandamus and attorney fee
     claims were never justiciable due to lack of ripeness and

                                  xiii
standing because he never submitted any TPIA request to the
City.




                          xiv
                               Introduction and Overview

       After the City released most of the documents that Kallinen requested

relating to the City’s red light traffic camera system under the TPIA, Appellees

sued the City seeking mandamus relief (as well as attorney fees) under the

TPIA to compel disclosure of documents that the City withheld based on

TPIA disclosure exceptions. They filed their suit against the City, not a City

official. They also sought redundant and duplicative declaratory relief (as well

as attorney fees) under the TDJA to declare that disclosure is required. Kubosh

joined the suit despite the fact that only Kallinen submitted any TPIA request

to the City.

       In late 2009, the trial court ruled on the TPIA exceptions asserted by the

City, and the City immediately complied by producing all documents that the

trial court ruled were not excepted from disclosure. In late 2011, the trial court

entered a final judgment which included an attorney fee award jointly to

Appellees. Later, in mid-2012, after the City filed a motion for new trial and

plea to the jurisdiction, the trial court entered modified final judgment

dismissing Kubosh for lack of standing and awarding attorney fees only to

Kallinen.3 But as a result of the City’s production of all documents that the trial


3
 In its original brief in this appeal, given that it did not learn that the trial court entered a
modified final judgment until the day it filed that brief, the City addressed issues relating to
court ordered the City to disclose, Kallinen’s claims were all rendered moot

prior to final judgment and he was entitled to no attorney fee award. As a

result, all Kallinen’s claims should be dismissed for lack of subject matter

jurisdiction and the fee award to him should be reversed and rendered in the

City’s favor.


                                  Statement of Facts

A.     Only Kallinen submits TPIA Requests to City.

       In November and December 2008, Kallinen submitted four email

requests to the City pursuant to the TPIA requesting release of documents

relating to the City’s red light traffic camera system. CR.41-48. Kubosh did not

submit to the City any TPIA request for documents. CR.75, 194, 322, 607,

674, 746-47, 920, 1001; CR[1].139, 258, 262; RR[1].28, 54. Kallinen’s requests

did not mention or reference Kubosh. CR.41-48.

B.     City releases 82% of requested documents.

       The City released approximately 3,235 pages of documents to Kallinen

pursuant to his requests (about 82% of all responsive documents). CR.398,

the trial court’s original final judgment in an abundance of caution. Although the modified
final judgment is at issue here, the City addresses issues relating to Kubosh also in an
abundance of caution in the event that this Court’s September 3, 2015 order allowing
supplemental briefing by the parties does not contemplate the filing of a reply brief by the
City. In addition, for the same reason, to the extent that any of the City’s arguments as to
Kallinen would also apply to Kubosh, the City addresses those arguments as to both.




                                             2
541-68, 586, 746, 825, 883, 890, 901, 908, 1054, 1071. The City withheld only

about 700 pages of documents based primarily on TPIA disclosure exceptions

for materials protected by the deliberative process privilege and attorney-client

privilege. CR.398, 586, 746, 825, 883, 890, 901, 908, 1054, 1071. The City also

timely requested a ruling by the Texas Attorney General on application of the

exceptions. CR.75, 80, 81-83, 86-91, 194, 199-202, 205-10, 321, 326-29, 334-

39, 399, 421-27, 587, 607, 746-47, 867, 919-20, 1054, 1071.

C.    Appellees sue City.

      On December 26, 2008, both Appellees sued the City seeking mandamus

relief under the TPIA to compel disclosure of all the documents that Kallinen

sought in his four requests to the City and declaratory relief under the TDJA to

declare that disclosure is required. CR.2-8, 30-38. Appellees filed suit: (1) less

than two weeks after Kallinen’s fourth request to the City, (2) before the City

completed all its submissions to the Attorney General supporting TPIA

exceptions for the withheld documents, (3) before the Attorney General had an

opportunity to complete its review of the City’s submissions and issue its

ruling, and (4) despite the fact that Kubosh never requested any documents

from the City. CR.2-8, 30-38, 41-48, 75, 80-83, 86-91, 176-77, 194, 199-202,

205-10, 321, 326-29, 334-39, 341-42, 399, 421-27, 429-34, 587, 607, 746-47,

867, 919-20, 1054, 1071, 1110-11, 1135-36, 1139-42, 1186-87.


                                        3
D.    Appellees ensure Attorney General does not rule on City’s proper
      request.

      On January 30, 2009, Appellees (through their counsel) sent an email to

the Attorney General’s office requesting that it decline to issue a ruling, despite

the City’s proper request, based on the pendency of their recently-filed lawsuit

against the City. CR.399, 428-30, 1110, 1135-36. On December 16, 2008, and

January 8, 2008, the Attorney General sent letters to the City declining to issue

any ruling and instead deferring to the trial court to decide whether the

withheld documents were excepted from disclosure under the TPIA. CR.176-

77, 341-42, 399, 431-34, 1110-11, 1139-42, 1186-87.

E.    Trial court grants partial summary judgment to Appellees; City
      releases all documents held not excepted from disclosure.

      On September 14, 2009, Appellees filed a motion for partial summary

judgment arguing that the withheld documents were not excepted from

disclosure. CR.615, 648-54. On September 28, 2009, the City filed a response.

CR.398-541. On October 2, 2009, Appellees filed a reply. CR.569-74. On

October 12, 2009, the trial court entered two orders granting in part and

denying in part Appellees’ motion for summary judgment and ordering the

City to disclose some of the withheld documents. CR.582-85; App. A; App. B.

The City then immediately disclosed to Appellees all withheld documents that

the trial court ordered the City to disclose. CR.1104.



                                        4
F.    Trial court holds attorney fees hearing; enters final judgment for
      Appellees.

      On November 16, 2009, Appellees filed a motion for entry of judgment

and award of attorney fees. CR.659-67. On December 3, 2009, the City filed a

response. CR.882-920. On December 8, 2009, the trial court entered an order

reiterating its October 12, 2009 ruling and stating that Appellees’ attorney fee

claim would be heard at the January 2010 trial setting (which was postponed

several times). CR.925, 931-32, 940-41; App. C.4

      On November 20, 2009, the City filed a motion to strike Kubosh as a

party-plaintiff on the ground that he has no standing to seek relief as a TPIA

“requestor” because he never actually submitted to the City any request for

documents. CR.746-50. On November 25, 2009, Appellees filed a response.

CR.810-14. On December 30, 2009, Appellees filed a supplemental response.

CR.935-37. On March 1, 2010, the trial court entered an order denying the

City’s motion to strike Kubosh. CR.969; App. D.

      On October 6, 2010, the trial court held a hearing on Appellees’ attorney

fee claim against the City. RR[1]. On October 12, 2011, the court entered a



4
  Judge Tracy Christopher presided over all trial court proceedings below until December
2009 when she was appointed as a Justice of the Fourteenth Court of Appeals. After Judge
Christopher entered the December 8, 2009 order, Judge Caroline Baker presided over all
subsequent trial court proceedings below.




                                           5
final judgment again reiterating its October 12, 2009 ruling and awarding

attorney fees to Appellees jointly. CR.1094-95; App. E.

G.    City files plea and new trial motion contesting jurisdiction and fee
      award.

      On November 10, 2011, the City filed a motion for new trial and plea to

the jurisdiction. CR.1103-47. On December 8, 2011, Appellees filed a

response. CR.1151-61. On December 12, 2011, the trial court held a hearing

on the City’s new trial motion and plea. RR[2]. On January 5, 2012, the court

entered an order granting in part and denying in part the City’s new trial

motion and denying the City’s plea. CR.1208; App. F. The court granted the

City’s new trial motion only as to the attorney fee award to Kubosh and denied

the remainder of the motion. CR.1208; App. F. The parties subsequently filed

motions seeking clarification of the trial court’s ruling. CR[1].2-5, 44-122, 257-

60. But in an abundance of caution, on January 12, 2012, the City filed a

notice of appeal. CR.1213-14.

H.    Trial court modifies judgment, dismisses Kubosh, awards fees only to
      Kallinen

      On March 9, 2012, Appellees filed a motion for reconsideration of the

trial court’s ruling on the City’s new trial motion as to the award of attorney

fees to Kubosh or (alternatively) for severance as to Kubosh so that the

judgment as to Kallinen may become final and appealable. CR[1].2-5. On



                                        6
April 12, 2012, the City filed a response. CR[1].44-122. The City also filed a

motion seeking (alternatively) entry of judgment awarding no attorney fees to

any Appellee. CR[1].44-122. On May 4, 2012, Appellees filed a supplemental

motion for reconsideration of the trial court’s ruling on the City’s new trial

motion as to the award of attorney fees to Kubosh or (alternatively) for entry of

an amended final judgment and order reflecting dismissal as to Kubosh.

CR[1].257-60. On May 24, 2012, the City filed a response. CR[2].2.

      On July 12, 2012, the trial court entered a modified final judgment ruling

that Kubosh has no standing and awarding him no attorney fees. CR[2].17-18;

App. G. On July 24, 2012, the City filed a request for findings of fact and

conclusion of law. CR[2].19-20. On August 10, 2012, the City filed a motion

for new trial as to the trial court’s amended final judgment. CR[2].21-33. On

August 15, 2012, Appellees filed proposed findings of fact and conclusion of

law. CR[2].36-41. On August 17, 2012, the City filed a notice of past due

findings of fact and conclusion of law. CR[3].26-27.

      On September 19, 2012, in an abundance of caution, the City filed

another notice of appeal as to the trial court’s amended final judgment.

CR[3].29-30. On October 3, 2012, Appellees also filed a notice of appeal notice

of appeal as to the trial court’s amended final judgment. CR[4].3-4. On




                                       7
February 6, 2013, the trial court issued findings of fact and conclusion of law

relating to the award of attorney fees to Kallinen. CR[4].5-6.

I.     This Court rules for City; Texas Supreme Court disagrees.

       On August 29, 2013, this Court reversed the trial court’s order denying

the City’s plea and rendered judgment that Appellees claims against the City

are dismissed for want of jurisdiction. App. H. On March 20, 2015, the

Supreme Court reversed this Court’s judgment and remanded to this Court for

further proceedings in accordance with its opinion. App. I. Both this Court’s

and the Supreme Court’s rulings focused on the City’s argument regarding

whether the trial court had subject matter jurisdiction over Appellees’ claims

before the Attorney General ruled on the City’s request for decision on the

documents it withheld based on TPIA disclosure exceptions—and did not

address other arguments raised by the City. App. H; App. I.5


                                 Summary of Argument

       First, Appellees’ TPIA mandamus and attorney fee claims were not

justiciable. Appellees’ TPIA mandamus and attorney fee claims were no longer



5
 For the Court’s convenience, the City includes in this brief arguments (infra, pp. 17-28) that
were raised in its original appeal brief in the event the Court prefers to have one brief
containing all the City’s arguments not addressed by this Court’s and the Supreme Court’s
rulings.




                                              8
justiciable at the time of final judgment because they were mooted when, prior

to final judgment, the City produced to Kallinen all withheld documents that

the trial court ordered the City to disclose, obviating any justiciable

controversy regarding entitlement to mandamus relief or attorney fees. The

trial court therefore had no subject matter jurisdiction at the time it entered its

modified final judgment because Appellees’ TPIA mandamus and attorney fee

claims were no longer justiciable at that time due to mootness.

      Second, Appellees’ claims against the City are barred by governmental

immunity, which defeats subject matter jurisdiction, for several reasons.

Appellees’ TDJA claims are barred by immunity because they are redundant

and duplicative of their TPIA claims. Appellees’ TPIA mandamus claims are

also barred by immunity because the TPIA does not waive the City’s immunity

and the only proper defendant for such claims is the pertinent public

information officer. Appellees’ TDJA claims are likewise barred by immunity

because the TDJA likewise does not waive immunity and the only proper

defendant for such claims is the pertinent public information officer. The trial

court therefore had no subject matter jurisdiction because Appellees’ claims

against the City are barred by governmental immunity.

      Third, there was no evidence or insufficient evidence to support any

award of attorney fees to Appellees. Kallinen was not entitled to any award of


                                        9
attorney fees because he did not actually incur any fees—as Kubosh, who was

not a “requestor” and therefore had no justiciable claim on which to sue,

incurred all the claimed fees. In addition, Appellees offered no evidence or

insufficient evidence to support the amount of the attorney fee award. The trial

court therefore also erred by awarding attorney fees to Appellees because they

failed to satisfy their burden to support any award of fees.

      Finally, although the trial court ultimately dismissed Kubosh and his

claims, the City nonetheless also addresses those claims here in the event that

it does not have the opportunity to file a reply brief. Kubosh’s TPIA

mandamus and attorney fee claims were never justiciable due to lack of

ripeness and standing because he never actually submitted any TPIA request to

the City, obviating any status as a TPIA “requestor” authorized to file suit.

The trial court therefore also never had no subject matter jurisdiction over

Kubosh’s TPIA mandamus and attorney fee claims.




                                        10
                                        Argument

I.     The trial court erred by denying the City’s plea and otherwise had no
       subject-matter jurisdiction over Appellees’ claims.

       A.     The trial court had no subject-matter jurisdiction because
              Appellees’ TPIA mandamus and attorney fee claims were not
              justiciable.

              1.     Appellees’ TPIA mandamus and attorney fee claims were
                     no longer justiciable at the time of final judgment because
                     they were mooted when the City, prior to final judgment,
                     produced all withheld documents that the trial court
                     ordered the City to disclose.

       The trial court had no subject-matter jurisdiction over Appellees’ TPIA

mandamus and attorney fee claims due to mootness. The TPIA provides that,

in an action under Section 552.321, “the court shall assess costs of litigation

and reasonable attorney fees incurred by a plaintiff who substantially prevails”

(subject to certain exceptions). See Tex. Gov’t Code § 552.323(a).6 The term

“substantially prevails” incorporates the concept of a “prevailing party” and

must be construed in line with prevailing-party requirements for recovering

attorney fees. See Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408

S.W.3d 696, 703 (Tex. App.—Austin 2013, no pet.).

6
  Section 552.323(a) specifies exception prohibiting the court from assessing “costs and fees
against a governmental body if the court finds that the governmental body acted in
reasonable reliance on: (1) a judgment or an order of a court applicable to the governmental
body; (2) the published opinion of an appellate court; or (3) a written decision of the
attorney general, including a decision issued under Subchapter G or an opinion issued
under Section 402.042.” See Tex. Gov’t Code § 552.323(a).



                                             11
      Although a requestor may plead TPIA mandamus and attorney fee

claims and even obtain favorable interlocutory summary judgment on

mandamus, the case is rendered moot and the requestor does not substantially

prevail where the governmental body produces the disputed documents before

final judgment, thus obviating any justiciable controversy. See Giggleman, 408

S.W.3d at 702-06; see also Int’l Grp. P’ship v. KB Home Lone Star L.P., 295

S.W.3d 650, 653 (Tex. 2009) (to qualify as “prevailing party” there must be

judicially sanctioned relief on the merits that materially alters the legal

relationship between the parties such as damages award, injunctive or

declaratory relief, or consent decree or settlement in party’s favor). Satisfaction

of the TPIA “substantially prevails” prong for fee recovery requires an

enforceable final judgment against the defendant from whom fees are sought,

or comparable relief through a consent decree or settlement. See Giggleman, 408

S.W.3d at 703; see also Int’l Grp. P’ship, 295 S.W.3d at 654.

      In this case, Appellees’ TPIA mandamus and attorney fee claims were

mooted prior to the trial court’s final judgment. It is undisputed that, after the

trial court granted summary judgment in favor of Appellees but before it

entered final judgment, the City immediately and voluntarily produced to

Appellees all withheld documents that the trial court ordered the City to

disclose. CR.1104. By doing so, the City obviated any justiciable controversy


                                        12
regarding Kallinen’s (or Kubosh’s) entitlement to mandamus relief or attorney

fees. See Giggleman, 408 S.W.3d at 704. This result is particularly appropriate

here, where the City timely and properly requested an Attorney General

opinion, but was deprived of the ability to obtain and rely on such an

opinion—by Appellees’ filing suit before the Attorney General ruled and

requesting the Attorney General to defer ruling due to their suit. Had the City

not been so deprived, Appellees would not have been entitled to attorney fees

because the City would have complied with the Attorney General ruling. It is

also consistent with both Section 552.321 and Giggleman to hold that the City

which—once it was provided with authoritative guidance in the trial court’s

ruling, relied on it, and produced the documents—should not have been

subjected to an award of attorney fees.


            2.    As a result, the trial court had no subject-matter
                  jurisdiction because Appellees’ TPIA mandamus and
                  attorney fee claims were not justiciable at the time of final
                  judgment.

      Subject matter jurisdiction is essential to the authority of a court to

decide a case. See M.D. Anderson Cancer Center v. Novak, 52 S.W.3d 704, 708

(Tex. 2001); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.

1993). Subject matter jurisdiction requires that the party bringing the suit have

standing, that there be a live controversy between the parties, and that the case


                                          13
be justiciable. See State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994);

Tex. Ass’n of Bus., 852 S.W.2d at 443-46. The justiciability doctrines of ripeness,

standing, and lack of mootness are constitutional components of subject matter

jurisdiction—and are rooted in the prohibition against advisory opinions,

which is rooted, in turn, in the separation-of-powers doctrine. See Patterson v.

Planned Parenthood of Houston, 971 S.W.2d 439, 442-43 (Tex. 1998); Williams v.

Lara, 52 S.W.3d 171, 184 (Tex. 2000).

      Ripeness concerns when an action may be brought and requires that, at

the time a lawsuit is filed, the facts have developed sufficiently so that an injury

has occurred or is likely to occur, rather than being contingent or remote. See

Patterson, 971 S.W.2d at 442. A controversy is not ripe when resolution

depends on contingent or hypothetical facts. Id. at 443. Standing concerns who

may bring an action and requires the plaintiff to be personally aggrieved.

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304-05 (Tex. 2008). A plaintiff

does not have standing unless the alleged injury is concrete and particularized,

actual or imminent, not hypothetical. Id. at 305. Mootness concerns the

cessation of what was once a live controversy between the parties. Williams, 52

S.W.3d at 184. A controversy ceases to exist and a case becomes moot if the

issues presented are no longer live or the parties lack a legally cognizable




                                        14
interest in the outcome. Id. If a case becomes moot, the parties lose standing to

maintain their claims. Id.

      The trial court therefore had no jurisdiction at the time it entered final

judgment because Appellees’ TPIA mandamus and attorney fee claims were

mooted, and thus no longer justiciable, prior to that judgment due to the City’s

production of the remaining documents to Kallinen.


      B.    The trial court also had no subject-matter jurisdiction because
            all Appellees’ claims are barred by immunity.

            1.    Appellees’ TDJA claims are barred by immunity because
                  they are redundant and duplicative of their TPIA claims.

      The TDJA also does not waive immunity for Appellees’ TDJA claims

seeking relief that is redundant or duplicative of the relief they seek through

their TPIA mandamus claims. Declaratory relief is proper if a justiciable

controversy exists as to the rights and status of the parties and the controversy

will be resolved by the declaration sought. See Bonham State Bank v. Beadle, 907

S.W.2d 465, 467 (Tex. 1995); Tex. Ass’n of Bus., 852 S.W.2d at 446. But a mere

request for declaratory relief alone does not establish jurisdiction because the

TDJA is not a grant of jurisdiction, but merely a procedural device for deciding

cases already within a court’s jurisdiction. See Chenault v. Phillips, 914 S.W.2d

140, 141 (Tex. 1996) (per curiam); Tex. Ass’n of Bus., 852 S.W.2d at 444. The



                                       15
TDJA is not available to settle disputes already pending before a court. See

BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990).7

       Under the redundant remedies doctrine, courts will not entertain an

action brought under the TDJA when the same claim could be pursued

through different channels. See Patel v. Tex. Dep’t of Licensing & Regulation, 469

S.W.3d 69, 79 (Tex. 2015). The focus of the doctrine is on the initiation of the

case and, in the jurisdictional and immunity context, whether the Legislature

created a statutory waiver of sovereign immunity that permits the parties to

raise their claims through some avenue other than the UDJA. Id. The Texas

Supreme Court, as well as the Austin Court of Appeals, has confirmed that an

award of attorney fees under the TDJA is unavailable if the claim for

declaratory relief is merely incidental to or redundant of relief sought through

TPIA claims. See Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 300-

01 (Tex. 2011); Giggleman, 408 S.W.3d at 704.

       In this case, Appellees’ pleadings confirm that their TDJA claims are

redundant and duplicative their TPIA claims. Their TDJA and TPIA claims

both complain only about the disclosure of documents that Kallinen requested
7
 Nor can a party use the TDJA to seek the same relief afforded under another cause of
action merely in an effort to obtain recovery of otherwise impermissible attorney fees. See
MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009); see also City of
Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 392 (Tex. App.—Houston [14th Dist.]
2004, no pet.).




                                            16
from the City. So Appellees’ TDJA claims only seek to resolve issues already

pending before the trial court through their TPIA claims and raise no new or

different controversies. Appellees allege duplicative TDJA claims merely in an

effort to obtain attorney fees, under the permissive TDJA standard, that are

otherwise unrecoverable under the TPIA here. Allowing Appellees to recover

attorney fees under the TDJA when they cannot meet the requirements for fee

recovery under the TPIA would frustrate the limits established by the TPIA.

See Jackson, 351 S.W.3d at 300. Appellees’ TDJA claims are therefore also

barred by immunity because they seek relief that is redundant and duplicative

of the relief that they seek through their TPIA claims.


            2.    Appellees’ TPIA mandamus claims are also barred by
                  immunity because the TPIA does not waive the City’s
                  immunity and the only proper defendant for such claims is
                  the pertinent public information officer.

      The TPIA does not waive immunity for Appellees’ TPIA mandamus

claims against the City under section 552.321(a)—it authorizes such claims

only against the pertinent City official. The TPIA requires an “officer for

public information of a governmental body” to produce public information for

inspection and/or duplication on application by any person to the officer. See

Tex. Gov’t Code § 552.221(a). It also authorizes a “requestor” to file suit for a




                                       17
writ of mandamus compelling “a governmental body” to make information

available for public inspection. See Tex. Gov’t Code § 552.321(a).8

      The Texas Supreme Court reconciled these provisions and held that the

only “proper party” against whom mandamus may be sought under Section

552.321(a) is the officer for public information rather than the governmental

body. See A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 672-73, 681 (Tex.

1995). The Court based its conclusion on the duty that the public information

officer has to make public information available under Sections 552.203 and

552.221(a). Id. In addition, the Fourteenth Court of Appeals followed Sharp

and reversed a summary judgment disposing of a mandamus suit filed against

a county sheriff in his official capacity. See Guthrie v. Garcia, 352 S.W.3d 307,

308-10 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

      The Guthrie Court also relied on the Texas Supreme Court decision in

Heinrich regarding the ultra vires exception to governmental immunity based on

the distinction between suits against a governmental entity and those against a

public official in his official capacity. See Guthrie, 352 S.W.3d at 309

(discussing City of El Paso v. Heinrich, 284 S.W.3d 366, 372-76 (Tex. 2009)). The

Heinrich court explained as follows:

8
 The TPIA defines a “requestor” as “a person who submits a request to a governmental
body for inspection or copies of public information.” See Tex. Gov’t Code § 552.003(6).




                                          18
     From this rationale, it is clear that suits to require state officials to
     comply with statutory or constitutional provisions are not
     prohibited by sovereign immunity, even if a declaration to that
     effect compels the payment of money. To fall within this ultra vires
     exception, a suit must not complain of a government officer’s
     exercise of discretion, but rather must allege, and ultimately prove,
     that the officer acted without legal authority or failed to perform a
     purely ministerial act. Thus, ultra vires suits do not attempt to exert
     control over the state—they attempt to reassert the control of the
     state. Stated another way, these suits do not seek to alter
     government policy but rather to enforce existing policy.

Heinrich, 284 S.W.3d at 372. The Guthrie court therefore held that the

requestor’s mandamus suit against the county sheriff in his official capacity

was proper under Section 552.321(a) because any claim against the county for

mandamus relief would necessarily have failed as a matter of law. See Guthrie,

352 S.W.3d at 309-10.

     In this case, Appellees filed their TPIA mandamus claims under Section

552.321(a) only against the City. They did not file those claims against the

City’s public information officer for the withheld information. So Appellees

did not file suit against the only proper party against whom mandamus relief

may be sought under Section 552.321(a), and the City is therefore immune

from Appellees’ TPIA mandamus claims under Section 552.321(a).




                                        19
            3.     Appellees’ TDJA claims are likewise barred by immunity
                   because the TDJA also does not waive the City’s
                   immunity and the only proper defendant for such claims is
                   the pertinent public information officer.

      The TDJA also does not waive immunity for Appellees’ TDJA claims

against the City—and, just like the TPIA, only authorizes such claims against

the pertinent City official. As outlined above, the Heinrich Court explained the

ultra vires exception to immunity based on the distinction between suits against

a governmental entity and those against public officials in their official

capacities. See Heinrich, 284 S.W.3d at 372-76; see also Guthrie, 352 S.W.3d at

309. But Heinrich also confirmed that a plaintiff may not bring declaratory

judgment actions against a governmental entity to determine rights under a

particular statute. See Heinrich, 284 S.W.3d at 372-73; see also Tex. Dep’t of State

Health Servs. v. Holmes, 294 S.W.3d 328, 335 (Tex. App.—Austin 2009, pet.

denied). Rather, plaintiffs are limited to bringing ultra vires suits against

governmental officials in their official capacities. See Heinrich, 284 S.W.3d at

372-73; Holmes, 294 S.W.3d at 335. So as a technical matter, governmental

entities—as opposed to their officers in their official capacities—remain

immune from suit. See Heinrich, 284 S.W.3d at 372-73.

      In this case, like their TPIA claims, Appellees also filed their TDJA

claims only against the City. They did not file those claims against the



                                        20
pertinent City official in his or her official capacity. So Appellees did not file

suit against the only proper party against whom declaratory relief may be

sought under the TDJA, and the City is therefore also immune from

Appellees’ TDJA claims.


            4.    As a result, the trial court also had no subject-matter
                  jurisdiction because all Appellees’ claims are barred by
                  immunity.

      Sovereign and governmental immunity protect the State and its political

subdivisions, including municipalities, from suit and liability unless such

immunity is waived. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d

653, 655 & n.2 (Tex. 2008); Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371,

374 (Tex. 2006). Courts interpret waivers of immunity narrowly because the

intent to waive must be clear and unambiguous. See Garcia, 253 S.W.3d at 655;

Reata Const. Corp., 197 S.W.3d at 375; Tex. Gov’t Code § 311.034. The party

suing the governmental entity has the burden to both plead and prove consent

to suit under a clear and unambiguous constitutional or statutory waiver of

that immunity. See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d

849, 853-55 (Tex. 2002); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999). Immunity from suit defeats subject-matter jurisdiction. See Reata Const.

Corp., 197 S.W.3d at 374; IT-Davy, 74 S.W.3d at 855.



                                       21
      The trial court therefore had no jurisdiction because all Appellees’ claims

are barred by immunity for several reasons: (1) their TDJA claims are barred

because they are redundant and duplicative of their TPIA claims, (2) their

TPIA mandamus claims are barred because the TPIA does not waive

immunity and the only proper defendant for such claims is the pertinent public

information officer, and (3) their TDJA claims are barred by immunity because

the TDJA also does not waive immunity and the only proper defendant for

such claims is the pertinent public information officer.


II.   The trial court erred by awarding attorney fees to Appellees because
      there was no evidence or insufficient evidence to support any award of
      fees to them.

      A.    Kallinen was not entitled to any award of attorney fees because
            he did not actually incur any attorney fees—as Kubosh incurred
            all the claimed fees.

      Even if the trial court had subject matter jurisdiction (which the City

denies), Kallinen was not entitled to any attorney fee award because he did not

actually incur any fees. As noted above, the TPIA requires the trial court to

assess costs of litigation and reasonable attorney fees in a mandamus suit

under Section 552.321—but may only award costs and fees that are actually

incurred by a plaintiff who substantially prevails. See Tex. Gov’t Code

§ 552.323(a). The Texas Supreme Court has confirmed that attorney fees are

incurred only where a party becomes liable for them and that a fee award

                                       22
under Section 552.323(a) or the TDJA is proper only where the fees are

actually incurred. See Jackson, 351 S.W.3d at 299-301 (holding that licensed

attorney was not entitled to recover attorney fees under TPIA because he did

not incur attorney fees since he represented himself or under TDJA because his

declaratory relief claim was merely incidental to his TPIA claim).

       In this case, the evidence presented at the trial court hearing on attorney

fees, including all billing invoices that Appellees’ counsel submitted for

representation of Appellees in this case, conclusively establishes that only

Kubosh incurred all the claimed fees allegedly incurred in connection with the

TPIA requests for information that only Kallinen submitted to the City.

Appellees’ counsel submitted all billing invoices only to Kubosh—and did not

submit any billing invoices to Kallinen. RR[1] Ex. 2. Kallinen offered no

evidence that he incurred any of the claimed fees. RR[1] Ex. 2. Kallinen was

therefore not entitled to any award of attorney fees because he did not actually

incur any attorney fees—as Kubosh incurred all the claimed fees.9


9
  To the extent that Appellees challenge the trial court’s dismissal of Kubosh due to lack of
standing, the attorney fee award under the court’s original final judgment was nonetheless
erroneous. First, for the reasons outlined above (which are incorporated here for all
purposes), Kubosh was not entitled to any fee award because his TPIA mandamus and
attorney fee claims were not justiciable. Second, for the same reasons that Kubosh was not
entitled to any fee award, the fee award to Appellees jointly was erroneous and could not
stand because Kallinen was not entitled to any fees that Kubosh was not entitled to recover
—and Appellees failed to segregate the fees that each allegedly incurred.




                                             23
      B.    Appellees were not entitled to any award of attorney fees
            because they failed to properly segregate recoverable (alleged)
            fees from non-recoverable (alleged) fees.

      Even if Kallinen incurred any fees (which the City denies), neither

Appellee was entitled to any award of attorney fees because each failed to

properly segregate recoverable (alleged) fees from non-recoverable (alleged)

fees. The Texas Supreme Court has confirmed that where attorney fees relate

to a claim for which fees are not recoverable, a claimant must segregate

recoverable from unrecoverable fees. See Tony Gullo Motors I, L.P. v. Chapa, 212

S.W.3d 299, 313 (Tex. 2006). Intertwined facts do not make fees recoverable;

it is only when discrete legal services advance both a recoverable and

unrecoverable claim that they are so intertwined that they need not be

segregated. See Chapa, 212 S.W.3d at 313-14; see also Rapid Settlements, Ltd. v.

Settlement Funding, LLC, 358 S.W.3d 777, 787 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (citing Chapa, 212 S.W.3d at 313-14).

      In this case, as noted above, Appellees’ counsel failed to segregate any

attorney fees incurred with regard to documents that the trial court ordered the

City to disclose from any incurred with regard to documents that the City

ultimately disclosed to Appellees voluntarily. RR[1] Ex. 2. Appellees’ counsel

also failed to segregate any attorney fees incurred by Kubosh from any

incurred by Kallinen. RR[1] Ex. 2. But such segregation as to Kubosh and


                                       24
Kallinen is critical to determining the amount of fees to which each may be

entitled. It is particularly critical to ensuring that neither is awarded any

attorney fees incurred only by Kubosh—who, as outlined above, lacks standing

not only for the same reasons why Kallinen lacks standing, but also for the

additional reason that he never actually submitted any TPIA request to the

City and therefore is not even a requestor authorized to file suit for mandamus

relief under Section 552.321(a). Appellees were therefore not entitled to any

award of attorney fees because they failed to properly segregate recoverable

(alleged) fees from non-recoverable (alleged) fees.10


       C.     Appellees offered no evidence or insufficient evidence to support
              the amount of the award of attorney fees.

       In the alternative, and subject to the City’s arguments on lack of

jurisdiction (including that Kallinen is not a prevailing party for purposes of

TPIA fee recovery), Appellees also failed to offer any evidence or any

sufficient evidence to support any fee award. As noted above, the TPIA

authorizes the court to assess reasonable attorney fees incurred by a plaintiff

who substantially prevails in a mandamus suit under Section 552.321(a). See


10
  Although Appellees did segregate fees to a limited (and insufficient) extent after the trial
court’s original final judgment, they failed to properly segregate fees separately incurred by
each of them.




                                             25
Tex. Gov’t Code § 552.323(a). In this case, Appellees offered no evidence or

insufficient evidence to establish that any attorney fees they allegedly incurred

were reasonable. The City’s attorney fee expert, Patrick Zummo, testified at

the attorney fee hearing in the trial court that Appellees’ claimed attorney fees

were not reasonable or proper for multiple reasons.

      Mr. Zummo explained that Appellees’ counsel did not exercise

appropriate billing judgment. RR[1].122, 134-35, 139, 1144. Mr. Zummo’s

testimony also confirms that Appellees’ evidence cannot support their burden

to prove that the claimed attorney fees were reasonable because:

   1. The billing invoices included many single entries for total time allegedly
      expended in a single day instead of multiple daily entries broken down
      for discrete individual tasks. RR[1].128-29, 141-43, 149, 182.

   2. Many task descriptions were too generic which precluded any
      independent assessment of the reasonableness of the stated time
      amounts. RR[1].132, 133, 147.

   3. Many task descriptions were redacted which also precluded independent
      assessment of the reasonableness of the stated time amounts. RR[1].121,
      130, 133, 149, 151, .

   4. Tasks relating to the deliberative process privilege and attorney-client
      privilege on which the City relied were not segregated even though they
      could have been segregated for the most part. RR[1].148-49, 152-54.

   5. The billing invoices included amounts for extensive research on legal
      issues of Appellees’ counsel touted expertise. RR[1].132, 156-57.

   6. The billing invoices included amounts for numerous attorney-client
      conferences to discuss “strategy” despite the fact that strategy had not


                                       26
      significantly changed and that Appellees are lawyers. RR[1].132-33, 141-
      42, 147-48, 150, 151, 180, .

   7. The billing invoices included amounts for unproductive speculation and
      investigation regarding whether Professor Robert Stein of Rice
      University allowed an alleged employment relationship between his wife
      and staff of the Mayor of the City of Houston to influence his research,
      analysis and opinions. RR[1].146-47.

   8. The billing invoices included amounts for excessive time spent reviewing
      the City’s documents and performing other tasks. RR[1].136-44, 151.

Mr. Zummo’s testimony therefore raised numerous fact issues regarding

whether Appellees satisfied their burden to prove that the claimed attorney fees

were reasonable.

      Mr. Zummo testified that the foregoing issues with Appellees’ claimed

attorney fees required reduction of about $21,440.00 (based upon 67 hours at

$320 per hour). RR[1].151-52. Mr. Zummo also testified that, based on the

count of the documents subject to the trial court’s rulings, Appellees were not

successful in their attempt to obtain 25% of the documents they sought—

reflecting the total percentage of withheld document for which the City

claimed the attorney-client privilege. RR[1].153-55. Mr. Zummo determined

that, even after deduction of $21,440 as stated above, the remaining amount

should be further reduced accordingly to a percentage reflecting only the total

percentage of withheld documents that the trial court ordered the City to




                                      27
disclose. RR[1].153-55. Mr. Zummo’s testimony therefore also confirms that

the amount of attorney fees awarded was excessive.


III.   The trial court also had no subject-matter jurisdiction over Kubosh’s
       claims; Kubosh’s TPIA mandamus and attorney fee claims were never
       justiciable due to lack of ripeness and standing because he never
       submitted any TPIA request to the City.

       The trial court also had no subject-matter jurisdiction over Kubosh’s

TPIA mandamus and attorney fee claims due to lack of ripeness and standing.

As noted above, the TPIA authorizes a “requestor” to file suit for a writ of

mandamus compelling a governmental body to make information available for

public inspection—and defines a “requestor” as “a person who submits a

request to a governmental body for inspection or copies of public information.”

See Tex. Gov’t Code §§ 552.321(a), 552.003(6). The plain language of Section

552.321 therefore only authorizes a person who submits a request for

information to a governmental body to file suit for a writ of mandamus. In this

case, it is undisputed that Kubosh never actually submitted any request for

information to the City before filing his TPIA claims against the City—despite

their lack of ripeness and his lack of standing. The trial court therefore had no

subject-matter jurisdiction over Kubosh’s TPIA mandamus and attorney fee

claims under Sections 552.321(a) and Section 552.323 because those claims

were not justiciable due to lack of ripeness and standing.


                                       28
                            Conclusion and Prayer

      For these reasons, the City Houston asked this Court to (1) reverse the

order of the trial court denying the City’s plea to the jurisdiction and render

judgment in the City’s favor that all Kallinen’s claims against the City are

dismissed for want of jurisdiction, and (2) reverse the modified final judgment

of the trial court awarding attorney fees to Kallinen and render judgment in the

City’s favor that Kallinen is not entitled to attorney fees and shall take nothing

on any of his claims against the City.




                                         29
                                       Respectfully submitted,

                                       DONNA L. EDMUNDSON
                                       City Attorney
                                       JUDITH L. RAMSEY
                                       Chief, General Litigation Section

                                       By: /s/ Fernando De Leon
                                          Fernando De Leon
                                          Senior Assistant City Attorney
                                          SBN: 24025325
                                          CITY OF HOUSTON LEGAL
                                          DEPARTMENT
                                          900 Bagby Street, 4th Floor
                                          Houston, Texas 77002
                                          832.393.6491 (telephone)
                                          832.393.6259 (facsimile)
                                          fernando.deleon2@houstontx.gov

                                       Attorneys for Appellee




                         Certificate of Compliance

      I certify that the foregoing was prepared in Microsoft Word 2010
Version 14.0 in Calisto MT 14 point font; the word-count function shows that,
excluding those sections exempted under TRAP 9.4(i)(1), the brief contains
6,660 words.

                                       /s/ Fernando De Leon
                                      Fernando De Leon




                                     30
                           Certificate of Service

      I hereby certify that a true and correct copy of the foregoing document
has been forwarded on December 9, 2015 to the following counsel of record by
e-service:

Joseph R. Larsen                       David A. Furlow
SEDGWICK LLP                           LAW OFFICE OF DAVID
1200 Smith Street, Suite 1600          A. FURLOW, P.C.
Houston, Texas 77002                   4126 Rice Boulevard
joseph.larsen@sedgwicklaw.com          Houston, Texas 77005
                                       dafurlow@gmail.com
Attorneys for Appellees

                                       /s/ Fernando De Leon
                                      Fernando De Leon




                                     31
                                Appendix

Tab
A.    Order on Plaintiffs’ Summary Judgment (dated October 12, 2009)
      (CR.582)
B.    Order Granting Plaintiffs’ Motion for Partial Summary Judgment and
      No-Evidence Partial Motion for Summary Judgment on Conceded
      Documents (dated October 12, 2009) (CR.583-85)
C.    Order (dated December 8, 2009) (CR.931-32)
D.    Order on City’s Motion to Strike Paul Kubosh (dated March 1, 2010)
      (CR.969)
E.    Final Judgment (dated October 12, 2011) (CR.1094-95)
F.    Order (dated January 5, 2012) (CR.1208)
G.    Amended Final Judgment (dated July 12, 2012) (CR[2].17-18)
H.    First Court of Appeals Judgment and Opinion
      (dated August 29, 2013)
I.    Supreme Court Judgment and Opinion (dated March 20, 2015)
J.    Order for Supplemental Briefing On Remand
Tab A
                                                                                                  P-
                                                                                                re\PsTz.
                                                 NO. 2008-75633


Randall Kallinen,                                                 IN THE DISTRICT COURT OF


         VS.
                                                                  HARRIS COUNTY, TEXAS
City of Houston

                                                                  295th JUDICIAL DISTRICT


                                      Order on Plaintiffs' Summary Judgment


         After reviewing the requested documents in camera, the court grants the Plaintiffs'
Motion for Summary Judgment in part and denies it in part. The court holds that the documents
that the City of Houston are withholding under the deliberative process privilege do not fall
under that exception as defined by Garland v. Dallas Morning News, 22 S.W. 3d 351 (Tex.
2000).
         However, most of the documents that the City is withholding under the attorney client
privilege are privileged with the exception of:
COMA 64, 102, 133 and 149.
         There are a few documents that the City has listed under both exceptions. COHP 36, 37
and 38, 40 are protected under attorney client. COHP 39, the top email only is protected. COHP
41, the top email is protected.
         The documents will remain confidential pending a decision to appeal by the City.




         FILED Loren Jackson                           Signed October 12, 2009.
                District Clerk

               OCT 12 2009
               Harris County, Texas

 By
                                                       Tracy Christopher
                                                       Judge Presiding
Tab B
                                                                                     Flied 09 October 8 P6:18
                                                                                     Low Jackson - District Cleric
                                                                                     Harris Cou239854
                                                                                     ED101J01
                                   CAUSE NO. 2008-75633                              By Sandra Talbert

RANDALL KALLINEN and
PAUL KUBOSH
                                                           IN THE DISTRICT COURT OF
                                                                                                    P- 3
v.                                                         HARRIS COUNTY, TEXAS
                                                                                                      s 7-
CITY OF HOUSTON, TEXAS                                     295th JUDICIAL DISTRICT

ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
   AND NO-EVIDENCE PARTIAL MOTION FOR SUMMARY JUDGMENT ON
                     CONCEDED DOCUMENTS

       CAME BEFORE the Court this day Plaintiffs Randall Kallinen and Paul Kubosh's Motion

for Entry of Judgment on Conceded Documents. The Court FINDS that the City, in its Response to

Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Motion for Partial Summary

Judgment, provided no evidence or argument that the documents identified below fall within either

the attorney-client privilege or deliberative process privilege exception to the Texas Public

Information Act. Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Motion for

Partial Summary Judgment is hereby GRANTED as to these documents, set out below by Bates

numbers:

A004                                                A055
A005-A007                                           A056
A009-A014                                           A057-A058
A015-A018                                           A059-A061
A025                                                A062
A034-A035                                           A063
A036-A037                                           A072-A075
A049                                                A076-A078
A050                                                A079
A051                                                A080
A084                                                A094-A095
A085                                                A096-A097
A086-A088                                           A100-A101
A089-A091                                           A103
A092-A093                                           A104




                                                                                               100583
A105             A183
A112-A113        A184
A114             A185
A123-A124        A186
A125             A187-A188
A126             A192-A193
A127-A131        A202-A203
A132             A208
A134-A136        A222
A137-A138        A223
A139-A141        A224
A142-A143        A225
A144-A148        A226
Al 56-A160       A227
A161             A228
A163             A229
A172             A240
A175             A241
A176             A243
A177             A245
A178             A247-A248
A179             A249
A180

P004-P005        P220-P221
P005-P007        P222
P008-P009        P223-P228
P027-P029        P250
P030             P251
P031             P252
P032             P257
P033             P258
P034             P261-P262
P035             P288
P044-P045        P289
P046             P290-294
P047             P295
P048             P296
P063             P297-P313
P066-P114        P313-P315
P115-P116        P357
P117-P119        P390
P124             P393-P425
P157             P426
P159-P160



             2
        Judgment is hereby entered in favor of Plaintiffs Randall Kallinen and Paul Kubosh on their

claims under the Texas Public Information Act and Texas Declaratory Judgments Act for the above-

referenced documents.                        11   • VI   V             .11 I •I e:       .1




       ., •   s•      :1            nce   o ion              :1 I .1     "I          •        •• •   Si   IS   se documents

_3.1Alielt-remain-irminrfition and on which the Court has nT)ryarruleci7—•

        Signed this        1a       day of October, 2009.




                                                                              JUDGE TRACY CHRI                       HER




APPROVED AS TO FORM AND SUBSTANCE:




Jose
SE P WICK, DETERT, MORAN & ARNOLD LLP
1 1 1 Bagby St., Suite 2300
Houston, Texas 77002
Telephone No.: (832) 426.7000
Facsimile No.: (832) 426.7009
Attorneys for Plaintiffs Randall Kallinen and Paul Kubosh




                                                    3




                                                                                                                           ar..k   1•—.4
Tab C
                                                                                        Flied 09 November 18 P2:30
                                                                                        Loren Jackson - District Cie*
                                                                                        Herds
                                                                                        ED101=7944
                                     CAUSE NO. 2008-75633 •                             By: Melanie Broughton-Cooper

RANDALL KALLINEN and                                           IN THE DISTRICT COURT OF
PAUL KUBOSH

v.                                                             HARRIS COUNTY, TEXAS                 roocx
CITY OF HOUSTON, TEXAS                                         295th JUDICIAL DISTRICT


                                       74 74 A b.. R   mai r 0 kikt.J__
          On the         day of                         , 2009, came on to be heard Plaintiffs Randall

Kallinen and Paul Kubosh's Motion for Judgment and for Award of Attorneys' Fees. The Court,

having reviewed papers on file in this case and having heard arguments of counsel, is of the opinion

that the motion has merit and it is hereby GRANTED.

          The Court specifically FINDS that the documents set out in the Order on Summary Judgment

and Order Granting Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Motion for

Partial Summary Judgment on Conceded Documents are public information that may not be withheld

from release pursuant to an exception to the Act. The Court further FINDS that the City of Houston

had refused to release this information from release necessitating Plaintiffs' mandamus suit and that

Plaintiffs have substantially prevailed in this action. pursuant to TEX. GOV 'T CO ' • 552.323(a),

                          ainti s s ou s recover their reasonable and nec         attorney's fees. On

     e evidence presented, the Co • FINDS Plaintiffs reasona       and necessary attorneys fees to be

                                                 ($               ).

          IT IS THEREFORE, ORDERE R , A • ' • ED AND DECREED that the documents

identified by the Order on Sum         Judgment and Or• Granting Plaintiffs' Motion for Partial

Summary Judgment              o-Evidence Motion for Partial S i ary Judgment on Conceded

Documents are        lic information that may not be withheld pursuant to •       ception to the Act.




nt.1235172 hit



                                                                                                 ^ ^,x46,47J. •..,.&"
          The Court       er ORDERS, ADJUDGES and DECRE that Plaintiffs should recover its

reasonable and               ssary attorney's fees,              ch the Court finds to be

                                     dollars ($                with post judgment interest thereon at the

rate of                    peace t (%) per         um from the date of this judgment until paid, together

with all costs of court in its beh ex       ded.

          The Court further ORDE' , D.TUDGES and DECREES that, in the event the City appeals

this Final Judgment, the r     .nable an• ecessary attorneys fees to Plaintiffs for successful defense

of this Judgment on ap al will be                               dollars ($               ) and successful

defense of this Ju       ent before the Texas S reme Court will be                                dollars

($

           P intiffs Randall Kal linen and Paul Kubosh       allowed such writs and processes as may be

ne        ary in the enforcement and collection of this Jud: ent.

          it-is-so-61WERED.           "1/41
                                                                                         _tarri.lFs t 9010
           SIGNED this            day of    02--C--     .                    , 2009.      +u-To Luea (4.
                                                                                             ockL4,_



                                                            A k
                                           HONORA           JUDGE TRACY            STOPHER




                                                    2




                                                                                                             2
Tab D
                                                                                       Filed 09 December 30 P5:44 I
                                                                                       Loren Jackson - Dtstrict Clerk!
                                                                                       Harris County
                                                                                       ED101J015619292
                                     CAUSE NO. 2008-75633                              By: Sandra Talbert


RANDALL KALLINEN and                                         IN THE DISTRICT COURT OF                  /7---
                                                                                                       /7---
PAUL KUBOSH
                                                                                               ST          Y
v.                                                           HARRIS COUNTY, TEXAS


CITY OF HOUSTON, TEXAS                                       295th JUDICIAL DISTRICT

               ORDER ON CITY'S MOTION TO STRIKE PAUL KUBOSH

       CAME BEFORE the Court today the City's Motion to Strike Paul Kubosh as plaintiff in this

action. The Court, having reviewed the papers on file, including previous Orders of the Court, and

having heard argument of counsel, hereby FINDS:

       The City's Motion to Strike Kubosh has already been denied by Order of the Court of

December 7, 2009 finding Paul Kubosh to be a substantially prevailing party in this lawsuit;

       The City has presented no argument or authority in addition to the papers it submitted to the

Court prior to this ruling and the Court finds no basis for overturning the Order finding Kubosh a

substantially prevailing party in this case; and

       The Court ORDERS that the City's Motion to Strike Paul Kubosh as a plaintiff in this matter

is, in all respects, DENIED.

       Signed the                day of January, 2010.




                                                          JUDGE PRESIDING
Tab E
V
                                          CAUSE NO. 2008-75633

    RANDALL KALLINEN and                                            IN THE DISTRICT COURT OF
    PAUL KUBOSH

    v.                                                              HARRIS COUNTY, TEXAS


    CITY OF HOUSTON. TEXAS                                          295th JUDICIAL DISTRICT


                                            FINAL JUDGMENT

            The Court FOUND in its Order on Plaintiffs' Summary Judgment and its Order Granting

    Plaintiffs' Motion for Partial Summary Judgment and No-Evidence Partial Motion for Summary

    Judgment on Conceded Documents, both of October 12, 2009, that the documents set out therein are

    public information that may not be withheld from release pursuant to an exception to the Act. As set

    out in these prior Orders of the Court. Judgment is hereby entered that the following documents

    identified by Bates number in the litigation are public information and not subject to an exception to

    the Act:

            COHA004-COHA007                                        COHA183-COHA188
            COHA009-COHA018                                        COFIA192-COHA193
            COHA025                                                COHA202-COHA203                             C=D
                                                                                                               C".41
            COHA034-COHA037                                        COHA208                              f,5    oa
            COHA049-COHA051                                        COHA222-COHA229                     ..1;
                                                                                                       c'
                                                                                                       .0 so
            COHA055-COHA064                                        CO1{A240-COHA241                    0,3
                                                                                                               L)
                                                                                                               f=")
            COHA072-COHA080                                        COHA243
            COHA084-COHA097                                        COHA245
            COHA100-COHA105                                        COHA247-COHA249
            COHA112-COHA114
            COHA123-COHA149
            COHA156-COHA161                                        COHP001 COHP035
            COHA163                                                COHP039 (except top e-mail)
            COHA172                                                COHP041 (except top e-mail)
            COHA175-COHA180                                        COHP042-COHP426

            The Court FOUND in its Order of December 8, 2009 that the City of Houston had refused to

    release this information necessitating Plaintiffs' mandamus suit, and that Plaintiffs have substantially


    2676379-1




                                                                                                   010'7-'4
                                                                     •
prevailed in this action. The three referenced prior Orders of the Court are attached hereto and

incorporated herein. Judgment is hereby entered that Plaintiffs have substantially prevailed in this

Public Information Act mandamus suit and pursuant to TEX. GOV'T CODE § 552.323(a) shall

recover their reasonable attorneys' fees. Following trial on this issue and on the evidence presented,

the Court FINDS Plaintiffs' reasonable attorney's fees to be ninety-five thousand six hundred sixty

four and no/100 dollars ($95,664.00).

        The Court further ORDERS, ADJUDGES and DECREES that Plaintiffs should recover its

reasonable and necessary attorney's fees. which the Court finds to be ninety-five thousand six

hundred sixty four and no/100 dollars ($95.664.00), with post-judgment interest thereon at the rate of

five percent (5 %) per annum from the date of this judgment until paid, together with all costs of

court in its behalf expended.

        The Court further ORDERS, ADJUDGES and DECREES that, in the event the City appeals

this Final Judgment, the reasonable and necessary attorneys fees to Plaintiffs for successful defense

of this Judgment on appeal will be thirty thousand and no/100 dollars ($30,000.00) and successful

defense of this Judgment before the Texas Supreme Court will be fifty thousand and no/100 dollars

($50,000.00).

        Plaintiffs Randall Kallinen and Paul Kubosh are allowed such writs and processes as may be

necessary in the enforcement and collection of this Judgment.

        It is so ORDERED.


        SIGNED this    i2       day of            c77LA_                 , 2011.




                                                 kA_ 0-4,4_4;LL
                                         HONORABLE JUDGE CAROLINE BAKER



2676379-1
Tab F
                                                                  O                          P-
                                                                                            pJuRY
                                   CAUSE NO. 2008-75633                                 r yNNTr<y
RANDALL KALLINEN and                                      IN THE DISTRICT COURT OF
PAUL KUDOS']
                                                          HARRIS COUNTY, TEXAS
V.

CITY OF HOUSTON                                           295th .JUDICIAL DISTRICT


                                               ORDER

       Came on to be heard Defendant City of Houston's Plea to the Jurisdiction and Motion for

New Trial. Upon consideration, the Court makes the following rulings:

       It is ORDERED that Defendant City of Houston's Plea to the Jurisdiction is denied.

       It is further ORDERED that Defendant City of Houston's Motion for New Trial is

GRANTED IN PART and a new trial is hereby ordered at to an award of attorney's fees to

Plaintiff Paul Kubosh. It is further ORDERED that the remainder of Defendant City of

Houston's Motion for New Trial is DENIED.

       Signed this 5th day of January, 2012.

                                                            e_0.A0-4.c4;1_t_6(kJe__LA___
                                                          JUDGE PRESIDING




                    FILED
                        Chris Daniel
                        District Clork

                        JAN — 6 2012

                          —7 77




                                                                                            '1208
Tab G
                                                                                              Filed 12 June 19 P3:20
                                                                                              Chris Daniel - District Clerk
                                                                                              Harris County
                                                                                              ED101J016936034
                                                                                              By Irma medina
                                       CAUSE NO. 2008-75633

RANDALL KALLINEN and                                             IN THE DISTRICT COURT OF
PAUL KUBOSH                                       5
                                                  5
V.                                                               HARRIS COUNTY, 1 b.XAS
                                                  5
                                                  5
CITY OF HOUSTON,1EXAS                             5              295th JUDICIAL DISTRICT


                                AMENDED FINAL JUDGMENT

        The Court FOUND in its Order on Plaintiffs' Summary Judgment and its Order Granting

Plaintiffs' Motion for Partial Summary judgment and No-Evidence Partial Motion for Summary

Judgment on Conceded Documents, both of October 12, 2009, that the documents set out therein are

public information that may not be withheld from release pursuant to an exception to the Act. As set

out in these prior Orders of the Court, Judgment is hereby entered that the following documents

identified by Bates number in the litigation are public information and not subject to an exception to the

Act:

        COHA004-CORA007                                          COHA183-COHA188
        COHA009-COH.A.018                                        COHA192-COHA193
        COHA025                                                  COHA202-CORA203
        COHA034-COHA037                                          CORA208
        COHA049-COHA051                                          COHA222-COHA229
        COHA055-COHA064                                          C01-1A240-COHA241
        COHA072-COHA080                                          COHA243
        COHA084-COHA097                                          COHA245
        COH.A.100-CORA105                                        COHA247-COHA249
        COHA112-COHA114
        COHA 123 -COHA149
        COHA156-COHA161                                          COHP001 COHP035
        COHA163                                                  COHP039 (except top e-mail)
        COHA172                                                  COHP041 (except top e-mail)
        COHA175-COHAl 80                                         COHP042-COHP426

        The Court FOUND in its Order of December 8, 2009 that the City of Houston had refused to

release this information necessitating Plaintiffs' mandamus suit, and that Plaintiffs have substantially

prevailed in this action. The three referenced prior Orders of the Court are incorporated herein. The



200022v1
Court also FINDS and ORDERS, however, that Paul ICubosh does not have standing in this case, and

he is dismissed with prejudice by this Judgment. Judgment is hereby entered that Randall Kallinen has

substantially prevailed in this Public Information Act mandamus suit and pursuant to TEX. GOV'T

CODE § 552.323(a) shall recover his reasonable attorneys' fees. Following trial on this issue and on the

evidence presented, the Court FINDS Kallinen's reasonable attorney's fees to be ninety-two thousand

one hundred seventy-six and no/100 dollars ($92,176.00).

       The Court further ORDERS, ADJUDGES and DECREES that Randall Kallinen should

recover his reasonable and necessary attorney's fees, which the Court finds to be ninety-two thousand

one hundred seventy-six and no/100 dollars ($92,176.00), with post-judgment interest thereon at the

rate of five percent (5 %) per annum from the date of this judgment until paid, together with all costs of

court in his behalf expended.

       The Court further ORDERS, ADJUDGES and DECREES that, in the event the City appeals

this Final Judgment, the reasonable and necessary attorneys fees to Randall Kallinen for successful

defense of this Judgment on appeal will be thirty thousand and no/100 dollars ($30,000.00) and

successful defense of this Judgment before the Texas Supreme Court will be Fifty thousand and no/100

dollars ($50,000.00).

        Plaintiff Randall Kallinen is allowed such writs and processes as may be necessary in the

enforcement and collection of this Judgment.

        It is so ORDERED.


        SIGNED this              day of                                     , 2012.




                                                     HONORABLE JUDGE CAROLINE BAKER




2860022v1                                      -2-
Tab H
                                        JUDGMENT

                                      Court of Appeals
                              First District of Texas
                                      NO. 01-12-00050-CV

                              CITY OF HOUSTON, Appellant

                                              V.

               RANDALL KALLINEN AND PAUL KUBOSH, Appellees

   Appeal from the 295th District Court of Harris County. (Tr. Ct. No. 2008-75633).

       This case is an appeal from the final judgment signed by the trial court on January 5,
2012. After submitting the case on the appellate record and the arguments properly raised
by the parties, the Court holds that there was reversible error in the trial court’s judgment in
the following respect: the trial court erred in denying the City of Houston’s plea to the
jurisdiction. Accordingly, the Court reverses the trial court’s judgment denying the City
of Houston’s plea to the jurisdiction and renders judgment that Randall Kallinen’s and
Paul Kubosh’s claims against the City of Houston are dismissed for want of jurisdiction.

       The Court orders that the appellees, Randall Kallinen and Paul Kubosh, jointly and
severally, pay all appellate costs.

       The Court orders that this decision be certified below for observance.
Judgment rendered August 29, 2013.

Panel consists of Justices Bland, Sharp, and Massengale. Opinion delivered by Justice
Sharp.
Opinion issued August 29, 2013




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-12-00050-CV
                           ———————————
                       CITY OF HOUSTON, Appellant
                                       V.
          RANDALL KALLINEN AND PAUL KUBOSH, Appellees



                   On Appeal from the 295th District Court
                            Harris County, Texas
                      Trial Court Case No. 2008-75633


                                OPINION

      This interlocutory appeal arises from a suit for writ of mandamus brought

under the Texas Public Information Act (“TPIA”). Randall Kallinen and Paul

Kubosh (“appellees”) filed a mandamus suit against the City of Houston (“the

City”) seeking the public disclosure of various documents requested regarding the
City’s red light camera installations. After a series of rulings by the trial court, the

City filed a motion for new trial and plea to the jurisdiction. The trial court denied

the City’s plea to the jurisdiction. In two issues, the City challenges the trial

court’s orders denying its plea to the jurisdiction and awarding attorney’s fees to

appellees. We reverse and render.

                                     Background

      In November and December 2008, Kallinen made four requests under the

TPIA for release of information regarding a commissioned study on traffic light

cameras in Houston. The City released some of the documents but withheld others

based upon disclosure exceptions under the Act.           The City also requested a

decision from the Attorney General regarding whether the TPIA exceptions

applied. Before the Attorney General had issued a decision, appellees filed suit in

district court on December 26, 2008, seeking a writ of mandamus under the TPIA.1

Appellees then requested that the Attorney General refrain from making a

determination because the issue was a subject of ongoing litigation. The Attorney

General did subsequently decline to issue an opinion in order to allow the trial

court to decide whether the withheld documents were excepted from disclosure

under the TPIA.


1
      Appellees also filed a declaratory judgment under the Texas Declaratory Judgment
      Act (“TDJA”), seeking a declaration that disclosure was required. See TEX. CIV.
      PRAC. & REM. CODE ANN. § 37.002(b) (West 2008).
                                           2
      On September 14, 2009, appellees filed a motion for partial summary

judgment seeking a ruling as to whether the TPIA’s exceptions applied to the

withheld documents. On October 12, 2009, the trial court granted in part, and

denied in part, appellees’ summary judgment motion, and ordered the City to

disclose some of the withheld documents. On November 16, 2009, appellees filed

a motion for entry of judgment and award of attorney’s fees and, following a

hearing on appellees’ attorney’s fee claim, the trial court issued a final judgment

on October 12, 2011, reiterating its October 12, 2009 ruling and awarding

appellees $95,664 jointly in attorney’s fees.

      On November 10, 2011, the City filed a motion for new trial and plea to the

jurisdiction. On January 5, 2012, the trial court granted the City’s motion for new

trial as to attorney’s fees for Kubosh and denied the City’s plea to the jurisdiction.

On July 12, 2012, the trial court entered a modified final judgment ruling that

Kubosh was without standing and awarding him no attorney’s fees.

                                Standard of Review

      A plea to the jurisdiction challenges the trial court’s subject matter

jurisdiction which is essential to the authority of a court to decide a case. See

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). A plea

challenging a trial court’s jurisdiction is a question of law that is reviewed de novo.

See City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010).

                                          3
      The construction of a statute, too, is a question of law which is reviewed de

novo. See Atmos Energy Corp. v. Cities of Allen, 353 S.W.3d 156, 160 (Tex.

2011). The purpose of interpretation is to arrive at the legislature’s intent in

creating the statute. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680,

683 (Tex. 2007).     In discerning legislative intent, we consider the plain and

common meaning of the statutory language. See McIntyre v. Ramirez, 109 S.W.3d

741, 745 (Tex. 2003). The statute must be read as a whole, giving effect to all—

not just isolated—portions. See City of San Antonio v. City of Boerne, 111 S.W.3d

22, 25 (Tex. 2003). Courts also consider the objective the law seeks to obtain. See

TEX. GOV’T CODE § 311.023(1) (West 2005).

                                    Discussion

      In its first issue, the City contends that the trial court erred in denying its

plea to the jurisdiction because, among other reasons, the Attorney General

declined to perform his statutory duty to issue a decision on the City’s request.

Appellees argue that they have a statutory right to file a suit for writ of mandamus

against the City because the City refused to release public information.

   A. Applicable Law

      The TPIA governs public disclosure of information about the affairs of the

government and the official acts of public officials and employees, and it requires

the officer for public information of a governmental body to produce public

                                         4
information for inspection or copying on application by any person to the officer.

See TEX. GOV’T CODE ANN. §§ 552.001, .203, .221(a) (West 2012). A “requestor”

is defined as “a person who submits a request to a governmental body for

inspection or copies of public information.” Id. § 552.003(6).

      The TPIA also lists numerous exceptions from required disclosure. See id.

§§ 552.101–.153. Though the act is to be liberally construed in favor of granting

requests for information, id. § 552.001(b), a governmental body may seek to

withhold requested information that it believes falls within one of the statutory

exceptions to disclosure. See id. §§ 552.101–.153. To do so, the government body

must timely request an Attorney General determination (if there has not been a

previous determination) and assert which exceptions to disclosure apply to the

information requested. Id. § 552.301. The TPIA provides that “the attorney

general shall promptly render a decision requested . . . determining whether the

requested information is within one of the exceptions . . . .” Id. § 552.306(a).

However, the governmental body may disclose the requested information to the

public or to the requestor before the Attorney General—or, if suit is filed under the

TPIA, the court with jurisdiction—makes a final determination that the requested

information is public, except if the requested information is confidential by law.

See id. § 552.303(a).




                                         5
        The TPIA also provides that the Attorney General and the original requestor

may file suit for a writ of mandamus to compel a governmental body to release

information to the public “if the governmental body refuses to request an attorney

general’s decision . . . or refuses to supply public information or information that

the attorney general has determined is public information.” Id. § 552.32(a). If a

governmental body does not request an Attorney General decision after receiving a

written request for information, the requested information is presumed to be

subject to required public disclosure and must be released unless there is a

compelling reason to withhold it. See id. § 552.302. Further, the TPIA also

provides that the only exceptions to required disclosure that the governmental body

may raise in such a suit are those that it properly raised before the Attorney

General to support its request for a decision as to whether disclosure is required.

See id. § 552.326(a).

        B. Analysis

        The issue before us is whether the TPIA allows a requestor to sue for a writ

of mandamus prior to the Attorney General issuing a decision when the

governmental body has requested one. The City contends that the TPIA requires

the Attorney General to render a decision before a mandamus suit may be filed.

Appellees argue that no such requirement has been or should be read into the

TPIA.

                                          6
      As previously noted, section 552.321(a) sets out three scenarios under which

the Attorney General or a requestor may file a mandamus suit.               First, if a

governmental body fails to request an Attorney General decision in the time

permitted, the information is presumed to be open to public disclosure, and the

governmental body must release the information. See id. § 552.321(a). If it fails to

do so, the requestor may file suit for a writ of mandamus. See id. Second, if the

Attorney General has rendered a decision and the governmental body has failed to

comply with the decision, the Attorney General or the requestor may then file suit.

See id. Finally, either the Attorney General or the requestor may file suit, if the

governmental body “refuses to supply public information.” Id.

      Appellees argue that the third scenario applies here. That is, they argue that

the City refused to release public information and they were therefore entitled to

file a mandamus suit. In support of their argument, appellees point out that the

legislature did not qualify the word “refuse” by including exceptions for cases in

which the government body has requested an Attorney General ruling. 2 That

2
      Appellees rely on Thomas v. Cornyn, 71 S.W.3d 473, 486 (Tex. App.—Austin
      2002, no pet.) (noting that mandamus statute “does not qualify the word ‘refuse’
      by including an exception for cases in which the governing body has filed a suit
      against the attorney general under the Act, and we will not read such an exception
      into the statute.”). That reliance is misplaced. In Thomas, the Attorney General
      had already rendered a decision on the nature of the information. According to
      section 552.324(a)(2), a governmental body may sue for declaratory relief from
      compliance with an already issued decision by the Attorney General. The Thomas
      court correctly determined that the suit for writ of mandamus filed after the
      Attorney General decision and before the suit for declaratory relief had been
                                          7
reading, however, is unpersuasive. Though the term “refuse” is not qualified, the

term “information” is. See id. § 552.321(a) (permitting suit for writ of mandamus

where “governmental body refuses to supply public information”) (emphasis

added). Because the TPIA carves out numerous exceptions to disclosure of certain

types of information and establishes procedures to determine whether information

falls under those exceptions, it is illogical to presume that information is public

while its very status is being challenged. Additionally, considering that the statute

explicitly states when information is presumed to be public—i.e., if the

governmental body has not made an Attorney General request—it does not stand to

reason that information should be considered public when a request has been made.

      Not only does the statute clearly provide when a mandamus suit may be

filed, but it is equally clear that the Attorney General must render a decision on the

nature of the information in question. The City contends that the TPIA is a

comprehensive regulatory scheme under which the Attorney General must issue a

decision before a mandamus suit may be filed.3 It argues that because the Attorney


      decided was a valid one, pointing to the relevant provision in 552.325(a) allowing
      a requestor to intervene in such suits. The language that appellees cite from
      Thomas is clearly applicable only to fact patterns involving governmental bodies’
      suits against the Attorney General, not for suits for writ of mandamus prior to an
      Attorney General ruling.
3
      An agency has exclusive jurisdiction when it is clear that the legislature instituted
      a pervasive regulatory scheme meant to be the exclusive means of remedying
      certain problems targeted by the legislation. See Subaru of America, Inc. v. David
      McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). If an agency has
                                            8
General did not issue a decision in this case before appellees filed their suit, the

jurisdictional prerequisite for filing suit under section 552.321 was not met.

Appellees, citing past Attorney General decisions, contend that the Attorney

General may—indeed, must in this case—defer to courts’ decisions when certain

issues are being litigated.

      The Attorney General, however, has already weighed in on this debate:

Open Records Decision No. 687 concludes that “in accordance with its

legislatively[] mandated function, the Attorney General has a statutory directive to

rule on a PIA disclosure question in the first instance in advance of judicial

review.” Tex. Att’y Gen. OR2011-687. After acknowledging the previous agency

decisions cited by appellees in which the agency had declined to issue an opinion

when that same question was pending before a court, the Attorney General ruled

that “this litigation policy is withdrawn and is no longer applicable to the PIA

ruling process.” Id.

      This decision is significant in several ways. First, it notes that the Attorney

General may not refuse to fulfill his duty to render open records decisions. See

Hous. Chronicle Publ’g Co. v. Mattox, 767 S.W.2d 695, 698 (Tex. 1989). Second,

      exclusive jurisdiction, a party must exhaust all administrative avenues before
      asking for judicial review of the agency’s action. Cash Am. Int’l Inc. v. Bennett,
      35 S.W.3d 12, 15 (Tex. 1999). Otherwise, a trial court lacks subject matter
      jurisdiction and must dismiss the claims within the agency’s exclusive jurisdiction.
      See Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90
      (Tex. 1992).

                                           9
it points out the 1999 revisions to the TPIA, which expanded the scope of the

Attorney General’s role. In particular, the decision highlights the addition of

section 552.011, which charges the Attorney General with “maintain[ing]

uniformity in the application, operation, and interpretation of this chapter.” The

decision then concludes that the detailed statutory scheme under which the

Attorney General’s open records ruling process operates, as well as the lack of any

language affirmatively directing the Attorney General to decline to issue an open

records ruling for the benefit of the public, demonstrate that such Attorney General

decisions are, indeed, mandatory. Finally, Open Records Decision No. 687 offers

insights into the policy considerations underpinning the Attorney General’s

expanded role under the statute. Vesting the Attorney General with the role of

evaluating requests by governmental bodies to withhold putatively excepted

information is both more efficient, avoiding the expense of court action, and more

democratic, allowing Texans equal access to information regardless of their ability

to secure legal representation. The decision concludes by stating that “there is

little to commend a rule that would avoid ruling on a pending question where the

Attorney General has not previously spoken.” Tex. Att’y Gen. OR2011-687.




                                        10
      We agree with the Attorney General’s interpretation. 4          The TPIA is a

comprehensive statutory scheme under which “the Attorney General [is] the first

arbiter of openness before Texans can be denied access to their government’s

records.”   See Tex. Att’y Gen. OR2011-687 (noting that, in enacting TPIA,

legislature “set[] out a detailed statutory scheme . . . which . . . evidences [its]

intention that the Attorney General play a critical, quasi-judicial role when a

governmental body wishes to avoid releasing information requested pursuant to the

PIA.”); see also Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P., 343

S.W.3d 112, 121 (Tex. 2011) (Wainwright, J., concurring) (describing TPIA as

“comprehensive scheme arming the public with statutory mandates for the

government to disclose information . . . .”). Although district courts have subject

matter jurisdiction under the TPIA, that jurisdiction only arises after the Attorney

General has ruled. See TEX. GOV’T CODE ANN. § 552.321(a).

      Appellees filed suit for writ of mandamus before the Attorney General

issued a ruling on the information that the City sought to withhold. Because


4
      Although not binding authority on appellate courts, we give due consideration to
      the Attorney General on questions involving the TPIA. See Holmes v. Morales,
      924 S.W.2d 920, 924 (Tex. 1996) (explaining that Attorney General opinions are
      “persuasive but not controlling” authority); City of Lubbock v. Cornyn, 993
      S.W.2d 461, 463 (Tex. App.—Austin 1999, no pet.) (recognizing due
      consideration to be given Attorney General decisions especially in cases involving
      TPIA); City of Hous. v. Hous. Chronicle Publ’g Co., 673 S.W.2d 316, 322 (Tex.
      App.—Houston [1st Dist.] 1984, no writ) (“While opinions of the Attorney
      General are not binding upon the courts, they should be given great weight.”).
                                          11
appellees failed to exhaust their administrative remedies before doing so, the trial

court lacked subject matter jurisdiction over their mandamus suit. As such, the

trial court erred in denying the City’s plea to the jurisdiction. We sustain the

City’s first issue.

                                    Conclusion

       We reverse the trial court’s order denying the City’s plea to the jurisdiction

and render judgment that appellees’ claims against the City are dismissed for want

of jurisdiction.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Bland, Sharp, and Massengale.




                                         12
Tab I
               IN THE SUPREME COURT OF TEXAS
                                         444444444444
                                           NO . 14-0015
                                         444444444444


                RANDALL KALLINEN AND PAUL KUBOSH, PETITIONERS,
                                                 v.


                          THE CITY OF HOUSTON, RESPONDENT

            4444444444444444444444444444444444444444444444444444
                            ON PETITION FOR REVIEW FROM THE
                     COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
            4444444444444444444444444444444444444444444444444444

                                          JUDGMENT

       THE SUPREME COURT OF TEXAS, having heard this cause on petition for review from
the Court of Appeals for the First District, and having considered the appellate record and parties’
briefs, but without hearing oral argument under Texas Rule of Appellate Procedure 59.1, concludes
that the court of appeals’ judgment should be reversed.
       IT IS THEREFORE ORDERED, in accordance with the Court’s opinion, that:

       1)      The court of appeals’ judgment is reversed;

       2)      The case is remanded to the court of appeals for further proceedings consistent with
               this Court’s opinion; and

       3)      Petitioners Randall Kallinen and Paul Kubosh shall recover, and Respondent City of
               Houston shall pay, the costs incurred in this Court.

       Copies of this judgment and the Court’s opinion are certified to the Court of Appeals for the
First District and to the District Court of Harris County, Texas, for observance.


                            Opinion of the Court delivered Per Curiam
                                         March 20, 2015
                                            *********
                IN THE SUPREME COURT OF TEXAS
                                         444444444444
                                           NO . 14-0015
                                         444444444444


                RANDALL KALLINEN AND PAUL KUBOSH, PETITIONERS,
                                                 v.


                           THE CITY OF HOUSTON, RESPONDENT

           4444444444444444444444444444444444444444444444444444
                             ON PETITION FOR REVIEW FROM THE
                      COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444


                                          PER CURIAM


       The Texas Public Information Act (“PIA”), Chapter 552 of the Texas Government Code,

“guarantees access to public information, subject to certain exceptions.” Tex. Dep’t Pub. Safety v.

Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 114 (Tex. 2011). The PIA provides that when a

governmental body receives a written request for information for which it wishes to claim an

exception, it must timely seek a ruling from the Attorney General if the exception’s applicability to

the requested information has not previously been determined. TEX . GOV ’T CODE § 552.301(a); see

also id. § 552.301(g). But the PIA also provides that a requestor may sue to compel disclosure of

the information. TEX . GOV ’T CODE § 552.321(a). In this case, the court of appeals held that a trial

court lacks subject matter jurisdiction over such a suit until the Attorney General rules. 414 S.W.3d

815, 820 (Tex. App.—Houston [1st Dist.] 2013). We disagree.
       Invoking the PIA, Randall Kallinen requested information from the City of Houston

regarding a study of traffic light cameras it had commissioned. The City produced a large number

of documents but withheld some and timely asked the Attorney General for an opinion on whether

the PIA excepted the withheld information from disclosure. The PIA gives the Attorney General

forty-five business days to issue opinions, though the time can be extended. TEX . GOV ’T CODE

§ 552.306(a). But before this time elapsed and before the Attorney General ruled, Kallinen sued for

a writ of mandamus to compel the City to disclose the withheld information. The City moved to

abate the lawsuit pending the Attorney General’s ruling, but the Attorney General closed his file

when he was alerted to the suit. At the time, the Attorney General did not interpret the PIA to

require an open records ruling on issues already in litigation. See Tex. Att’y Gen. OR2011-687

(citing Tex. Att’y Gen. OR1990-560 at 3 (declining to rule on sensitive information on the ground

the issues should be resolved in the pending Texas prison litigation), and A & T Consultants, Inc.

v. Sharp, 904 S.W.2d 668, 671 (Tex. 1995) (noting in dicta that the Attorney General withdrew his

opinion pending litigation on PIA questions)).

       The City filed a plea to the jurisdiction, arguing that the court lacked jurisdiction over the suit

until the Attorney General ruled. The district court overruled the plea, granted summary judgment

for Kallinen, ordered disclosure of many of the withheld documents, and awarded Kallinen $175,664

in attorney fees through appeal to this Court.

       The City complied with the order to disclose but appealed the attorney fee award. The parties

agree that the only basis for the trial court’s jurisdiction is Section 552.321(a) of the PIA. That



                                                   2
provision, with subsections inserted in brackets for ease of reference, conditions the court’s exercise

of jurisdiction as follows:

                A requestor or the attorney general may file suit for a writ of mandamus
       compelling a governmental body to make information available for public inspection
       if the governmental body [A] refuses to request an attorney general’s decision . . . or
       [B] refuses to supply [1] public information or [2] information that the attorney
       general has determined is public information that is not excepted from disclosure.

TEX . GOV ’T CODE § 552.321(a). The parties agree that conditions A and B2 do not apply. The court

of appeals reasoned that condition B1 cannot apply when the governmental body is challenging

whether an exception to disclosure applies because the information has not yet been determined to

be public. 414 S.W.3d at 818. Accepting the City’s argument, the court stated that the Attorney

General must determine whether information is subject to disclosure when asked to do so, that he

has exclusive jurisdiction to make that determination in the first instance, that the requestor of

information must exhaust all administrative remedies before suing, and that therefore a trial court’s

jurisdiction over a requestor’s suit “only arises after the Attorney General has ruled.” Id. at 818–20.

       The City’s position is flawed in several respects. First, it equates information that is public

with information that has been determined by the Attorney General to be public, so that condition

B2 swallows up condition B1. This violates a duty of statutory interpretation to “give effect to all

the words of a statute and not treat any statutory language as surplusage if possible.” Chevron Corp.

v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987).

       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

                                                  3
rulings. See Cox Tex. Newspapers, L.P., 343 S.W.3d at 113; In re City of Georgetown, 53 S.W.3d

328, 329–36 (Tex. 2001). And we have interpreted PIA exceptions without a ruling by the Attorney

General. See City of Garland v. Dall. Morning News, 22 S.W.3d 351, 358–64 (Tex. 2000); A & T

Consultants, Inc., 904 S.W.2d at 671, 674–81. The court of appeals’ interpretation ignores these

cases.

         The City argues, and the court of appeals held, that requestors of information should be

required to exhaust their remedies in placing disputes before the Attorney General before resorting

to the courts. But requestors have no such remedies. While the Attorney General may invite their

arguments, they have no right to request or demand a ruling or disclosure from the Attorney General,

and no right to an administrative appeal. See TEX . GOV ’T CODE § 552.304. Requestors cannot be

required to finish something they have no right to start. The requirement that a governmental body

seek a ruling from the Attorney General when withholding requested information is a check on the

governmental body, not a remedy for the requestor to exhaust. And again, the City’s view of Section

552.321(a) would make the Attorney General’s ruling unreviewable.

         The City argues that because information is generally “presumed to be subject to required

public disclosure” when a governmental body fails to timely request an Attorney General’s ruling,

TEX . GOV ’T CODE § 552.302, the information should not be considered public when a ruling is

requested. But the premise cannot establish its converse. One may infer from a governmental

body’s failure to request a ruling that the body is not claiming an exclusion, else it would advance

its position in compliance with prescribed procedures. See TEX . GOV ’T CODE § 552.301. One



                                                 4
cannot likewise infer that just because a governmental body properly seeks an Attorney General’s

ruling, its exclusion claim must be correct.

       The Attorney General advises in an amicus brief that he does not claim exclusive jurisdiction

to decide open records issues. Consistent with that position, at the time of the City’s request for a

ruling, as noted above, the Attorney General’s policy was not to rule on issues in litigation. See Tex.

Att’y Gen. OR2011-687. In reversing that policy, he does not claim the authority to rule without

court review.

       A requestor of information certainly has the choice to await the Attorney General’s decision.

A governmental body may decide to release the requested information during the process and on

receipt of an adverse opinion from the Attorney General. Efficiency may counsel patience. But the

governmental body is entitled to insist on its position to a final ruling, see TEX . GOV ’T CODE

§ 552.324, and a requestor is not required to defer a suit for mandamus.

       A court may decide, exercising sound discretion, to abate proceedings to await the Attorney

General’s ruling. The Attorney General characterizes its authority as akin to primary jurisdiction,

a prudential doctrine that applies when an agency is “staffed with experts trained in handling the

complex problems in the agency’s purview” and there is a benefit to be “derived from [the] agency[]

uniformly interpreting its laws, rules, and regulations.” Subaru of Am., Inc. v. David McDavid

Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). The Legislature has expressly charged the Attorney

General with maintaining “uniformity in the application, operation, and interpretation” of the PIA,

TEX . GOV ’T CODE § 552.011, and the Office of the Attorney General is experienced in interpreting

and applying the subchapter C exceptions. If the court determines that under the circumstances of

                                                  5
a particular case a decision from the Attorney General before adjudication of the merits of disclosure

would be beneficial and any delay would not impinge on a requestor’s right to information,

abatement would be within the court’s discretion.

       The court of appeals erred in dismissing Kallinen’s suit for want of jurisdiction.

Accordingly, we grant the petition for review and, without hearing oral argument, reverse the court

of appeals’ judgment and remand to that court for further proceedings in accordance with this

opinion. TEX . R. APP . P. 59.1.



Opinion issued: March 20, 2015




                                                  6
Tab J
                                   COURT OF APPEALS FOR THE
                              FIRST DISTRICT OF TEXAS AT HOUSTON

                  ORDER FOR SUPPLEMENTAL BRIEFING ON REMAND



Case name:             City of Houston, Appellant v.
                       Randall Kallinen and Paul Kubosh, Appellees

Cause No.              01-12-00050-CV


         This court is in receipt of the mandate of the Texas supreme court in this appeal. The
parties may file supplemental briefing if they believe it will aid this court’s consideration of the
issues on remand. The appellant’s supplemental brief is due by October 9, 2015. The appellees’
brief is due 30 days after the appellant’s brief is filed, or by November 9, 2015, whichever is later.




Judge’s signature:     /s/ Jane Bland
                       Jane Bland
                       Justice, acting individually




Date:        September 3, 2015
