      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00298-CV



   Appellants Susan Lewis King and Austin King, M.D. // Cross-Appellant Ken Paxton,
                              Attorney General of Texas

                                                 v.

   Appellees, Ken Paxton, Attorney General of Texas; and The City of Abilene, Texas //
               Cross-Appellees, Susan Lewis King and Austin King, M.D.


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
     NO. D-1-GN-16-001160, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



             CONCURRING AND DISSENTING OPINION


               Because I would affirm the trial court’s summary judgment ruling that certain

portions of the audio recordings during the time period that Mrs. King physically was outside of her

home were subject to disclosure under the Public Information Act, I respectfully dissent to the

portion of this Court’s judgment that determined otherwise.

               As framed by the Court’s opinion, the dispositive question is whether Mrs. King’s

location during that time period was a “private space”—“a location in which a person has a

reasonable expectation of privacy.”      See Tex. Occ. Code §§ 1701.661(f) (prohibiting law

enforcement agency from releasing any portion of recording made in “private space”), 1701.651(3)

(defining “private space”). The Court’s opinion characterizes Mrs. King’s location at that time as

her “front porch” and relies on the “curtilage” of a home under Fourth Amendment jurisprudence
to conclude that a “porch” is a “private space” for purposes of section 1701.661(f) of the Texas

Occupations Code.      But the Fourth Amendment is concerned with unreasonable searches

and seizures in the criminal law context, not the disclosure of information under the PIA. See

U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.”).

               “We . . . regard the area ‘immediately surrounding and associated with the

home’—what our cases call the curtilage—as ‘part of the home itself for Fourth Amendment

purposes.’” Florida v. Jardines, 569 U.S. 1, 6 (2013) (emphasis added). “The ‘basic purpose of this

Amendment’ . . . ‘is to safeguard the privacy and security of individuals against arbitrary invasions

by governmental officials.’” Carpenter v. United States, — U.S.—, —, 138 S. Ct. 2206, 2213 (2018)

(quoting Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 528

(1967)) (emphasis added); see Jardines, 569 U.S. at 6 (“At the Amendment’s ‘very core’ stands ‘the

right of a man to retreat into his own home and there be free from unreasonable governmental

intrusion.’”) (emphasis added). Neither party suggests that “unreasonable governmental intrusion”

was involved here.

               Moreover, “the Fourth Amendment protects people, not places.”             Carpenter,

138 S. Ct. at 2213 (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). “[T]he Fourth

Amendment cannot be translated into a general constitutional ‘right to privacy.’” Katz, 389 U.S. at

350. Yet, the majority attempts to do just that here by incorporating Fourth Amendment concepts



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into the statutory definition of “private space”—a place. See id. at 351 (denouncing “effort to decide

whether or not a given ‘area,’ viewed in the abstract, is ‘constitutionally protected’”); see also id.

at 350 (recognizing that Fourth Amendment “protects individual privacy against certain kinds of

governmental intrusion, but its protections go further, and often have nothing to do with privacy at

all”). Thus, I find the majority’s reliance on the criminal concept of “curtilage” to be imprudent.

               I would apply the plain meaning of the statutory definition of “private space” to

Mrs. King’s undisputed location at the time of the audio recordings. See Presidio Indep. Sch. Dist.

v. Scott, 309 S.W.3d 927, 930 (Tex. 2010) (“We thus construe the text according to its plain and

common meaning unless a contrary intention is apparent from the context or unless such a

construction leads to absurd results.” (citing City of Rockwall v. Hughes, 246 S.W.3d 621,

625–26 (Tex. 2008))); see also Tex. R. Civ. P. 166a(c); University of Tex. Sys. v. Paxton,

No. 03-14-00801-CV, 2017 Tex. App. LEXIS 3043, at *12—16 (Tex. App.—Austin Apr. 7, 2017,

no pet.) (mem. op.) (describing standard of review in appeal from trial court’s summary judgment

ruling in PIA case). It is uncontroverted that she was outside of her home without a physical barrier

between her location and the street. I would conclude that this location was not a “private space”

as that phrase is defined in section 1701.651(3) of the Texas Occupations Code.1 Thus, I would

affirm the trial court’s summary judgment ruling that the audio recordings during the time period in




       1
           In conflict with the plain language of the statutory definition of “private space,” the
majority relies on Mrs. King’s subjective expectation of privacy given her circumstances and desires
at the time of the audio recordings. But Mrs. King’s desire at the time of the recordings not to be
where she was or to have the police leave her property is not relevant. The statutory definition is
objective—“a location in which a person has a reasonable expectation of privacy.” Tex. Occ.
Code § 1701.651(3).

                                                  3
which Mrs. King was outside of her home were not excepted from disclosure pursuant to section

1701.661(f) of the Texas Occupations Code.

               As to the remainder of the majority’s resolution of this appeal, although I concur in

its ultimate disposition, I cannot join its analysis. I fundamentally disagree with the majority’s

importation of criminal terms and concepts to resolve this civil appeal. Among my concerns are

broadly worded statements in the Court’s opinion such as “[a] welfare check is not a criminal

investigation” and “[w]elfare checks are considered to be within an officer’s ‘community caretaking

functions.’” Again, the phrase “community caretaking function” has applicability in the context of

criminal cases challenging the reasonableness of searches and seizures under the Fourth Amendment.

In my view, the term “community caretaking functions” has no role in resolving whether Mrs. King’s

records were excepted from disclosure under section 552.108(b)(2) of the PIA. See Tex. Gov’t

Code § 552.108(b)(2) (excepting from disclosure internal record of law enforcement agency in

matter relating to law enforcement if internal record relates to “law enforcement only in relation to

an investigation that did not result in conviction or deferred adjudication”). The analysis need go

no further than to observe that the parties agree that the officers’ interactions with Mrs. King,

however characterized, were not at any time a criminal investigation.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Triana

Filed: June 6, 2019



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