Opinion filed August 23, 2012




                                                       In The


   Eleventh Court of Appeals
                                                    __________

                                             No. 11-10-00306-CV
                                                 __________

                                   CAREFLITE, Appellant
                                           V.
                                RURAL HILL EMERGENCY
                              MEDICAL SERVICES, INC., Appellee


                                  On Appeal from the 66th District Court
                                           Hill County, Texas
                                      Trial Court Cause No. 47,865



                                                   OPINION
       CareFlite sought a writ of mandamus against Rural Hill Emergency Medical Services,
Inc., seeking to compel Rural Hill to produce information requested under the Texas Public
Information Act (TPIA), TEX. GOV’T CODE ANN. ch. 552 (West 2012). Rural Hill filed a general
denial and a counterclaim under the Uniform Declaratory Judgments Act1 (UDJA) in which it
sought attorney’s fees and a declaration that Rural Hill is not a governmental body as set forth by
and subject to the TPIA. Both sides moved for summary judgment. The trial court granted
Rural Hill’s motion and denied CareFlite’s motion. The trial court then severed the summary
judgment from a second, unrelated suit that had been consolidated into the cause of action and

       1
           TEX. CIV. PRAC. & REM. CODE ANN. ch. 37 (West 2008).
rendered a final order in which it disposed of all claims and parties in the action that were the
subject of the first suit.
        CareFlite contends in two issues that (1) the trial court erred when it granted summary
judgment and attorney’s fees for Rural Hill on a declaratory judgment counterclaim that did
nothing more than assert a defense to CareFlite’s right to mandamus relief and (2) the trial court
erred in granting summary judgment for Rural Hill and denying summary judgment for CareFlite
when the undisputed facts show that Rural Hill was supported in whole or in part by public
funds, thereby making it a governmental body subject to the disclosure requirements of the
TPIA. We affirm.
        Rural Hill is a not-for-profit corporation that provides emergency medical transportation
and related services exclusively in Hill County. It has contracts with the cities of Mt. Calm and
Hubbard to make those services available twenty-four hours a day, seven days per week. Rural
Hill derives its revenue in three ways: (1) monthly payments from the City of Mt. Calm;
(2) monthly payments from the City of Hubbard; and (3) payment from the patients for whom it
renders specific medical transportation and related services. The monthly payments Rural Hill
receives from each of the cities are calculated according to a formula set forth in each city’s
respective contract. In addition to the monthly payment, the contract between Rural Hill and the
City of Hubbard also provides that the city will provide Rural Hill with a facility and utilities.
Several years after the contract’s execution, Rural Hill moved into its own building, at which
point the City of Hubbard began to pay Rural Hill an additional monthly payment of $800 in lieu
of providing the facility and utilities.
        CareFlite is also a not-for-profit provider of emergency medical services. Through its
attorney, CareFlite sent a letter to Rural Hill requesting, pursuant to the TPIA, that Rural Hill
produce the following documents: “(1) financial records (balance sheets, income statements,
listings of expense, and collections), (2) standard service rates, (3) actually billed rates or charges
for any and all services, and (4) tax returns and schedules, including Form 990’s.” When Rural
Hill did not produce the requested information and did not request a ruling concerning the
request from the attorney general, CareFlite filed a petition for writ of mandamus, in which it
asked the trial court to compel Rural Hill to provide the information.
        Both of the motions for summary judgment were traditional ones. TEX. R.
CIV. P. 166a(c). We review the trial court’s summary judgment de novo. Valence Operating

                                                  2
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 215 (Tex. 2003). A trial court must grant a traditional motion for summary
judgment if the moving party establishes that no genuine issue of material fact exists and that the
movant is entitled to judgment as a matter of law. Rule 166a(c); Lear Siegler, Inc. v. Perez, 819
S.W.2d 470, 471 (Tex. 1991). In order for a defendant to be entitled to summary judgment
against the plaintiff’s claims, it must either disprove an element of each of the plaintiff’s causes
of action or establish an affirmative defense as a matter of law. Am. Tobacco Co. v. Grinnell, 951
S.W.2d 420, 425 (Tex. 1997); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
       Once the movant establishes a right to summary judgment, the nonmovant must come
forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). When reviewing a traditional summary
judgment, the appellate court considers all the evidence and takes as true evidence favorable to
the nonmovant. Am. Tobacco Co., 951 S.W.2d at 425; Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548–49 (Tex. 1985). The appellate court “must consider whether reasonable and
fair-minded jurors could differ in their conclusions in light of all of the evidence presented” and
may not ignore “undisputed evidence in the record that cannot be disregarded.” Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex. 2007).
       When both parties move for summary judgment on the same issues and the trial court
grants one motion and denies the other, we consider the summary judgment evidence presented
by both sides and determine all questions presented. If we determine that the trial court erred,
we must render the judgment that the trial court should have rendered. Valence Operating, 164
S.W.3d at 661. When a trial court does not specify the grounds it relied upon to grant the
summary judgment, we must affirm the summary judgment if any of the grounds stated in the
motion for summary judgment are meritorious. FM Props. Operating Co. v. City of Austin, 22
S.W.3d 868, 873 (Tex. 2000).
       In its second issue, CareFlite maintains that the trial court erred when it granted Rural
Hill’s motion for summary judgment and denied its motion for summary judgment. It contends
Rural Hill is a governmental body subject to the TPIA. CareFlite bases its argument, in part, on
the proposition that Rural Hill was supported in whole or in part by public funds because the
contracts Rural Hill had with the cities were not arms-length transactions. It additionally argues
that Rural Hill comes under the TPIA for two reasons: first, because the services contemplated

                                                 3
by the contracts traditionally have been provided by government and, second, because Rural Hill
and the cities have a common objective or purpose.
        We begin our analysis of the matters set forth in CareFlite’s second issue with a
recognition that the underlying purpose of the TPIA is to provide transparency in governmental
affairs. Thus, the TPIA begins in Section 552.001:
                (a) Under the fundamental philosophy of the American constitutional form
        of representative government that adheres to the principle that government is the
        servant and not the master of the people, it is the policy of this state that each
        person is entitled, unless otherwise expressly provided by law, at all times to
        complete information about the affairs of government and the official acts of
        public officials and employees. The people, in delegating authority, do not give
        their public servants the right to decide what is good for the people to know and
        what is not good for them to know. The people insist on remaining informed so
        that they may retain control over the instruments they have created. The
        provisions of this chapter shall be liberally construed to implement this policy.

                (b) This chapter shall be liberally construed in favor of granting a request
        for information.

        CareFlite filed its original petition for writ of mandamus, in which it sought an order to
compel Rural Hill to produce information under the TPIA. Section 552.321(a) provides, in
pertinent part, “A requestor . . . may file suit for a writ of mandamus compelling a governmental
body to make information available for public inspection if the governmental body refuses to
request an attorney general’s decision . . . or refuses to supply public information.” In response
to CareFlite’s petition, Rural Hill filed a counterclaim in which it sought a declaration that it was
not a governmental body subject to the TPIA. Rural Hill asserts that it is not subject to the TPIA
and, therefore, is not required to provide CareFlite with the information it requested. Rural Hill
specifically bases its assertion that it is not subject to the TPIA on its claim that it is not a
governmental body as defined by the TPIA.
        The TPIA contains provisions that pertain to the required disclosure of certain
information by a governmental body when that governmental body is requested to do so in
accordance with the TPIA. Our concern in this case is whether Rural Hill is a governmental
body.
        There are several definitions of “governmental body” within the TPIA, but the only one
that is at issue in this appeal is this one that makes an entity a governmental body as to: “the part,
section, or portion of an organization, corporation, commission, committee, institution, or agency

                                                  4
that spends or that is supported in whole or in part by public funds.” Section 552.003(1)(A)(xii).
“‘Public funds’ means funds of the state or of a governmental subdivision of the state.”
Section 552.003(5).
       It is undisputed that Rural Hill receives public funds. We have set forth the sources of
Rural Hill’s revenue earlier in this opinion, and a portion of that revenue comes from public
funds supplied by the City of Hubbard and the City of Mt. Calm.
       But, the fact that Rural Hill receives public funds does not make it a governmental body
under the TPIA automatically. To be considered a governmental body, the public funds that it
receives must be the type of “support” that places Rural Hill within the purview of the TPIA.
       Neither our research nor that of either party has uncovered an opinion published by a
Texas court that directly addresses the definition of “support” under the TPIA. However, in
1988, the United States Court of Appeals for the Fifth Circuit addressed this issue in Kneeland v.
National Collegiate Athletic Association, 850 F.2d 224 (5th Cir. 1988). In Kneeland, the court
analyzed similar language of the TPIA predecessor, the Texas Open Records Act (TORA). 850
F.2d at 228. Like this court, the Fifth Circuit noted that there were no Texas cases directly on
point. Id. To inform its decision, the court looked to formal opinions of the Texas Attorney
General. Id. Then, with the TORA, as now, with the TPIA, the Texas Attorney General is
charged with issuing opinions concerning its interpretation of the provisions of the act when
requested. Id.; Section 552.301. A review of the applicable formal opinions by the Texas
Attorney General will inform our decision here.
       In Open Records Decision No. 228, the attorney general was called upon to determine
whether the North Texas Commission was a governmental body for purposes of the TORA.
TEX. ATT’Y GEN. OR1979-228 (ORD-228). The North Texas Commission was a nonprofit
corporation that was chartered to promote the interest of the Dallas-Fort Worth metropolitan
area. Id. The City of Fort Worth contracted with the North Texas Commission to provide that
promotion, and it agreed to pay the commission $80,000 for three years. Id. It was the attorney
general’s opinion that the phrase “supported in whole or in part by public funds” applied to an
agreement between a political subdivision and any “organization, corporation, commission,
committee, institution, or agency” whereby public funds are transferred from the political
subdivision to any such entity but which does not “[impose] a specific and definite obligation on
the [entity] to provide a measurable amount of service in exchange for a certain amount of

                                                  5
money as would be expected in a typical arms-length contract for services between a vendor and
purchaser.” Id.
       The attorney general concluded that the contract between the City of Fort Worth and the
commission did not impose a “specific and definite obligation on the Commission to provide a
measurable amount of service in exchange for a certain amount of money.” Id. In essence, the
City of Fort Worth and the commission had not entered into an arms-length transaction. Id.
Therefore, the City of Fort Worth was providing for the general support of the commission with
public funds, and the commission was a governmental body subject to the TORA. Id.
       In 1982, the attorney general issued Open Records Decision No. 302. TEX. ATT’Y GEN.
OR1982-302 (ORD-302).        There, the question was whether the Brazos County Industrial
Foundation was a governmental body subject to the TORA. Id. The foundation was a nonprofit
corporation that, in part, had a focus on rendering “aid to manufacturing and industrial
enterprises situated in [Brazos County], and to induce the location in said County of other
manufacturing and industrial establishments.” Id.
       In ORD-302, the attorney general compared the Brazos County Industrial Foundation
with the North Texas Commission in ORD-228. Id. The Brazos County Industrial Foundation
had received an unrestricted grant of $48,000 from the City of Bryan. Id. It was the attorney
general’s opinion that this grant was no different than the relationship considered in ORD-228; in
essence, the transaction was not an arms-length one. Id. Thus, the Brazos County Industrial
Foundation was a governmental body and subject to the TORA. Id.
       Ambulance activity reports of Amarillo Medical Service were, in part, the subject of
Attorney General Open Records Decision No. 343. TEX. ATT’Y GEN. OR1982-343 (ORD-343).
Amarillo Medical Service was a private, nonprofit corporation. Id. It entered into a contract
with Amarillo Hospital District to furnish transportation and emergency services to persons who
used the district’s facilities. Id. The attorney general noted that the contract required Amarillo
Medical Service to perform specific duties. Id. In return, Amarillo Medical Service was to
receive “each month a sum equal to the differences between cash receipts and approved
operating expenditures” of Amarillo Medical Service. Id. The opinion of the attorney general
was that the agreement between the district and Amarillo Medical Service imposed “a definite
obligation ‘to provide a measurable amount of service in exchange for a certain amount of
money.’” Id. Essentially, then, the district and Amarillo Medical Service had entered into an

                                                6
arms-length transaction, and Amarillo Medical Service was not “supported in whole or in part by
public funds” and was, therefore, not a governmental body subject to the TORA. Id.
       In Opinion No. JM-821, the attorney general cautioned against relying on the outcome in
the Amarillo Medical Service case. TEX. ATT’Y GEN. OP. No. JM-821 (1987). It disagreed with
the outcome of that opinion because a close reexamination of the contract in that decision
showed that the hospital district (a governmental body) there was to provide ambulances and to
pay for the general monthly operating expenses of Amarillo Medical Service. Id. Additionally,
district approval was required before the service could make expenditures or hire personnel. Id.
We note that those factors are not involved in the contracts between the cities and Rural Hill.
       The inquiry in Attorney General Opinion No. JM-821, to which we just referred, was
whether the Cy-Fair Volunteer Fire Department, a nonprofit corporation, was subject to the
TORA as a governmental body. Id. The department received public funds by virtue of a
contract with the Harris County Rural Fire Prevention District No. 9.          Id.   In return, the
department was to perform fire-fighting services within the district. Id. The attorney general
noted that the main issue in this type of case is whether the private entities “are supported in
whole or in part by public funds or whether they expend public funds.” Id.
       Under the contract between the Cy-Fair Volunteer Fire Department and the Harris
County Rural Fire Prevention District No. 9, the bulk of the funds received by the district from
tax collections, less costs associated with administration, were transferred by the district to the
department. Id. The attorney general opined that the manner of funding was not the sole
dispositive issue to be examined when determining whether an entity is subject to the TORA. Id.
Other issues might include whether there is a common objective or purpose, whether an agency-
type relationship is created (although as noted in footnote 1 of its opinion, the agency is not the
same as that in tort responsibility), and whether the services provided under the contract are
traditionally provided by governmental bodies.       Id.   However, “[t]he overall nature of the
relationship created by the contract is relevant in determining whether the private entity is so
closely associated with the governmental body that the private entity falls within the Open
Records Act.” Id.
        The attorney general also noted that volunteer firefighters have a closer relationship with
governmental bodies than others. Id. For instance, by statute, political subdivisions may provide
workers’ compensation coverage and may provide relief and retirement benefits. Id. Further, it

                                                 7
was noted in the opinion that the legislature may provide benefits to survivors of a volunteer
firefighter killed in the performance of “official duties.” Id. (citing TEX. CONST. art. III, § 51-d).
These provisions, according to the attorney general, make it more probable that a volunteer fire
department will come under the TORA. Id. Nonetheless, according to the attorney general, the
answer to the inquiry depends upon the circumstances of each case. Id.
       The contract between the Cy-Fair Volunteer Fire Department and the Harris County
Rural Fire Prevention District No. 9 provided: “The Department will provide the emergency
ambulance services, the fire prevention services, the fire fighting services in the geographic
District and will not look to the District to provide any services whatsoever except for the
providing of funds to enable the Department to carry on its duties and responsibilities.” Id. The
contract required that the department submit one-year operating budgets and a three-year capital
expenditure budget for planning purposes and provided for continuing annual renewals. Id.
There is no indication in the opinion that the department received funds from any source other
than the district. Id. It was the opinion of the attorney general that the contract involved the
general support of the department’s activities with public funds and that it was subject to the
TORA. Id.
       In another attorney general opinion, LO-93-55, the attorney general responded to the
issue of whether certain chamber of commerce subdivisions were governmental bodies subject to
the Open Meetings Act. TEX. ATT’Y GEN. LO-93-55 (1993); see TEX. GOV’T CODE ANN. ch. 551
(West 2012). In the course of answering that question, the attorney general noted that the term
“governmental body” was defined differently in the Open Meetings Act than in the Open
Records Act. LO-93-55. The Open Meetings Act did not contain a provision similar to the one
in the Open Records Act that included within its definition of “governmental body” as “the part,
section, or portion of every organization, corporation, commission, committee, institution, or
agency which is supported in whole or in part by public funds, or which expends public funds.”
Id. Therefore, while the chamber of commerce subdivisions might receive public funds and not
fall within the purview of the Open Meetings Act, the attorney general opined that the
subdivisions could fall under the Open Records Act to the extent that they received public “funds
from a governmental body (and such funds do not constitute a quid pro quo).” Id.
       In its opinion in Kneeland, the Fifth Circuit explained that, in its review of the Texas
Attorney General opinions, it perceived “three distinct patterns of analysis” in regard to this

                                                  8
issue.    Kneeland, 850 F.2d at 228.       First, “an entity receiving public funds becomes a
governmental body under the Act, unless its relationship with the government imposes ‘a
specific and definite obligation . . . to provide a measurable amount of service in exchange for a
certain amount of money as would be expected in a typical arms-length contract for services
between a vendor and purchaser.’” Id. (quoting Opinion No. JM-821). Second, “a contract or
relationship that involves public funds and that indicates a common purpose or objective or that
creates an agency-type relationship between a private entity and a public entity will bring the
private entity within the . . . definition of a ‘governmental body.’” Id. Finally, “some entities,
such as volunteer fire departments, will be considered governmental bodies if they provide
‘services traditionally provided by governmental bodies.’” Id.
         We do not disagree with the “patterns” or issues that the Fifth Circuit gleaned from a
study of the attorney general opinions, but we believe that there are sub-patterns or sub-issues
within each pattern or issue. We also believe that no one sub-pattern or sub-issue in and of itself
is dispositive of the main pattern or issue of whether a particular entity, in a particular
circumstance, is or is not a governmental body. We believe that the overarching consideration is,
in these sub-issues, as indicated by the attorney general in Opinion No. JM-821, whether the
overall nature of the relationship created by the contract is such that the private entity is “so
closely associated with the governmental body that the private entity falls within the Open
Records Act.” Opinion No. JM-821. The answer to the inquiry depends upon the circumstances
of each case. Id. And, if it is determined that public funds are for the general support of the
private entity, the entity is subject to the TPIA. Id. (citing ORD-228).
         We will take CareFlite’s arguments each in turn with an eye toward the stated purpose of
the TPIA and the various standards set forth in the attorney general opinions. As we do that, we
do so realizing that no one standard or sub-pattern or sub-issue is dispositive and that it is
relevant to look at the circumstances of this case on an individual basis to determine whether
Rural Hill is “so closely associated with the governmental body that the private entity falls
within the Open Records Act.” Opinion No. JM-821.
         CareFlite argues that the contracts between the cities and Rural Hill do not provide for an
arms-length commercial services contract as would normally exist between a vendor and a
purchaser. CareFlite advances four reasons in support of its argument.



                                                  9
       We will address CareFlite’s first and third arguments under its second issue on appeal
together. First, CareFlite maintains that the contracts between Rural Hill and each of the cities
do not impose “a specific and definite obligation” on Rural Hill “to provide a measurable
amount” of emergency medical services. Kneeland, 850 F.2d at 228. In its third argument,
CareFlite essentially takes the position that the services that Rural Hill provides are “in
exchange” for the payments from its patients, not the cities’ public funds and that, therefore,
there is no quid pro quo.
       We agree that Rural Hill does provide services to its patients in exchange for the
payments it receives from them. However, the contracts between Rural Hill and the cities also
list additional specific services that Rural Hill is obligated to provide in exchange for the
payments it receives from the cities. For example, the contracts obligate Rural Hill to “[a]ssure
[Rural Hill] and its personnel are appropriately trained, licensed, and certified for the levels of
service provided” and “[a]ssure . . . that qualified personnel are available to respond to each
emergency call on which [Rural Hill] is dispatched.” The services that Rural Hill is to provide to
the cities under its contracts, as far as the cities are concerned, are not solely the individual
emergency responses but also include continuous emergency services supported with adequate
equipment and adequately trained and qualified personnel, the minimum standards of and for
which are stated in the contracts. Additionally, these minimums should be readily ascertainable
from industry standards. We believe that this constitutes a sufficient quid pro quo as is referred
to in LO-93-55. Therefore, we disagree with CareFlite’s first and third arguments under its
second issue on appeal.
       In its second argument under its second issue on appeal, CareFlite maintains that, because
the contracts set the amount of payment to Rural Hill at an amount that is based on annually
appraised property values, which may fluctuate, the services are not in exchange for a “certain
amount of money.” The Hubbard contract provides the following:
       The length of this agreement is for a five year term with monies for the first year
       to be calculated based on $.07 per 100 dollars taxable value for the City of
       Hubbard and its [extra territorial jurisdiction]. This amount of monies will be
       calculated each year of this contracts [sic] term on the date set forth by the Hill
       County Appraisal District on which the Hill County Appraisal District certifies
       the tax role. For each additional year the amount is not to exceed $32,000 per
       year unless agreed upon by the council for the City of Hubbard during the annual
       budget process.


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The Mt. Calm contract contains similar language.
         Because appraised property values fluctuate, CareFlite argues, the contracts do not
require the cities to provide Rural Hill with a certain amount of money. Therefore, asserts
CareFlite, Rural Hill does not meet that part of the criteria for an arms-length transaction.
         Rural Hill argues that the potential fluctuation under the contracts do not mean that the
contracts fail to require payment of a certain amount of money. Rather, drawing the comparison
to an attorney working under a contingent fee agreement, Rural Hill argues that, although the
revenue may fluctuate, the amount is discernible against a measurable baseline.
         Neither party cites to any source to support its arguments of what qualifies as a “certain
amount of money.” After the Kneeland court reviewed three attorney general opinions where the
contractual obligations imposed were not specific enough to fall under the exception, the court
discussed ORD-343 in which an obligation to provide specific measurable services in exchange
for a specific payment was found.2 Kneeland, 850 F.2d at 229. In its examination of the
attorney general’s opinion and conclusion that the challenging entity, an ambulance service, was
not a governmental body, the court noted that a formula was used to determine payment under
the contract. Id. In exchange for its services, the challenging entity received “each month a sum
equal to the difference between cash receipts and approved operating expenditures of the
ambulance service.” Id. (quoting ORD-343). Because the contracts in this case provide a
formula for determining the exact amount Rural Hill is to be paid, we hold that the contracts do
provide for the payment of a “certain amount of money.”                               We disagree with CareFlite’s
argument to the contrary.
         In its fourth argument under its second issue on appeal, CareFlite maintains that the
contracts do not constitute an arms-length transaction because the contracts’ provisions
providing for the cities’ review of Rural Hill’s budget and for the City of Hubbard’s supplying
free rent and utilities are not what “would be expected in a typical arms-length contract for
services.” Both of the cities’ contracts specify that Rural Hill will “[p]rovide the city with a
quarterly budget and service report to the council and verbal reports as requested.”




         2
            As discussed supra, the attorney general has cautioned against relying on ORD-343’s outcome. In Kneeland, the court
recognized this as well, but explained that the caution is based on the attorney general’s reappraisal of the facts of ORD-343—
specifically, “that the ambulance service could not make expenditures or personnel decisions without approval of the public
body”—not because of its exposition of the law. Kneeland, 850 F.2d at 231.

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       In support of this part of its argument that this is not typical of an arms-length contract,
CareFlite directs us to the Cy-Fair Volunteer Fire Department opinion that we have discussed
above. Opinion No. JM-821. CareFlite specifically points to the fact that the department’s
contract required it to provide the governmental entity with “one-year operating budgets and a
three-year capital expenditure budget for planning purposes.” Id. In our examination of the
opinion, we note that the contract there provided that the funds were provided “to enable the
Department to carry on its duties and responsibilities” and that the department received public
funds to provide all of the district’s needed services. We also note the particular distinction
given to volunteer fire departments generally as referenced by the attorney general. Rural Hill,
however, received about eighty percent of its funds from its patients and performed services
other than emergency services that were outside the scope of the contracts it had with the cities.
       Additionally, CareFlite argues that the contract cannot be an arms-length transaction
because the City of Hubbard agreed to supply free rent and utilities and that such an agreement
would not be expected in a typical arms-length contract for services.          We have found no
authority that requires that a governmental body’s part of a quid pro quo be satisfied exclusively
with dollars. Consideration can take many forms. See generally Roark v. Stallworth Oil & Gas,
Inc., 813 S.W.2d 492, 496 (Tex. 1991) (discussing consideration). In any event, we do not find
the form of consideration to be solely dispositive of the “arms-length transaction” issue.
       Our review of this case in light of the attorney general opinions that we have discussed
leads us to hold that the transactions between the cities and Rural Hill were arms-length ones.
The contracts imposed upon Rural Hill the obligation to provide a measurable amount of service
in exchange for a certain amount of money as would be expected in a typical arms-length
contract for services between a vendor and purchaser.
       In its second issue, CareFlite presents other arguments not related to its arms-length
transaction ones. CareFlite argues that Rural Hill comes within the definition of a governmental
body because both the cities and Rural Hill share the “common purpose or objective” of locally
providing emergency medical services to residents. See Kneeland, 850 F.2d at 228.
       CareFlite additionally argues in Issue Two that emergency medical services are “services
traditionally provided by governmental bodies” and that, therefore, Rural Hill should be
considered a governmental body under the TPIA. See Kneeland, 850 F.2d at 228. In support of
this argument, CareFlite directs our attention to a 2003 Attorney General Open Records Letter

                                                12
Ruling, which noted “that emergency medical services are ‘traditionally provided by
governmental bodies.’” TEX. ATT’Y GEN. OR2003-2402 (ORD-2402) (quoting Opinion No. JM-
821).
        CareFlite has not directed us to, and we have not found, any authority, primary or
persuasive, that stands for the proposition that, if a private entity and a governmental body share
a common purpose or objective, the private entity is automatically a governmental body for
purposes of the TPIA. Neither are we aware of any like authority when an entity provides
services traditionally provided by governmental bodies. Nor, with the modern changes in the
way emergency services are delivered, can we say categorically that emergency medical services
are traditionally provided by governmental bodies. In ORD-2402, the attorney general does not
include the statement “that emergency medical services are ‘traditionally provided by
governmental bodies’” in its analysis of the facts or its conclusion. We are aware, however, of
the statements of the attorney general that each situation is to be examined on a case-by-case
basis and that the overall nature of the relationship is relevant in a determination of whether a
private entity is a governmental body for purposes of the TPIA. Opinion No. JM-821. Because
the contracts imposed upon Rural Hill the obligation to provide a measurable amount of service
in exchange for a certain amount of money as would be expected in a typical arms-length
contract for services between a vendor and purchaser and because we are not persuaded that
CareFlite’s other arguments show that the overall nature of the relationship created by the
contracts is such that Rural Hill is “so closely associated with the governmental body that [it]
falls within the [TPIA],” we hold that the trial court was correct in its determination that Rural
Hill was not a governmental body and, therefore, not subject to the TPIA.               Issue Two is
overruled.
        In its first issue, CareFlite complains that the trial court erred when it granted Rural Hill’s
motion for summary judgment. It argues that Rural Hill could not obtain a judgment under the
UDJA when it sought nothing more than a favorable ruling on a defense to CareFlite’s right to
mandamus relief. However, seeking declaratory relief that an entity is not a governmental body
as set forth under the TPIA and mandamus relief under the same are not mutually exclusive.
See, e.g., Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353 (Tex. App.—Waco
1998, pet. denied). CareFlite is correct in its assertions that, generally, a UDJA counterclaim
may not be asserted on a claim already pending before the court, Staff Industries, Inc. v.

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Hallmark Contracting, Inc., 846 S.W.2d 542, 547 (Tex. App.—Corpus Christi 1993, no writ),
nor may a UDJA counterclaim be creatively asserted to contend that a plaintiff cannot make out
an element of its case or to state a defense to a plaintiff’s case. BHP Petroleum Co. v. Millard,
800 S.W.2d 838, 841 (Tex. 1990). However, “when a declaratory judgment counterclaim has
greater ramifications than the original suit, the court may allow the counterclaim.”           BHP
Petroleum, 800 S.W.2d at 842 (quoting Winslow v. Acker, 781 S.W.2d 322, 328 (Tex. App.—
San Antonio 1989, writ denied). Here, Rural Hill sought a declaration of its rights and interests
under both the TPIA and the contracts by which it received payment for services rendered to the
City of Hubbard and the City of Mt. Calm. Although the resolution of the declaration that Rural
Hill sought does provide a defense to the action CareFlite brought, that is not its only effect. The
trial court’s determination that, based on the evidence before it—including the contracts between
Rural Hill and the cities—Rural Hill is not a governmental entity under the TPIA has the
additional foreseeable effect of defining Rural Hill’s status under the TPIA so long as its revenue
conditions remain the same. Because Rural Hill’s counterclaim has greater ramifications than
CareFlite’s original suit, we hold that the trial court did not err when it granted Rural Hill’s
motion for summary judgment and awarded attorney’s fees under the UDJA. Id. Issue One is
overruled.
       The judgment of the trial court is affirmed.




                                                             JIM R. WRIGHT
                                                             CHIEF JUSTICE


August 23, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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