                                                                                      ACCEPTED
                                                                                 13-15-00342-CV
                                                                 THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                            10/5/2015 6:01:20 PM
                                                                                Dorian E. Ramirez
                                                                                           CLERK



                 No. 13-15-00342-CV
                _____________________________________ FILED IN
                                                 13th COURT OF APPEALS
                Court of Appeals              CORPUS CHRISTI/EDINBURG, TEXAS
                                                  10/5/2015 6:01:20 PM

           Thirteenth District of Texas            DORIAN E. RAMIREZ
                                                          Clerk
                _____________________________________
                    COPANO NGL SERVICES, LLC,
                                                                  Appellant,
                                   V.

          JOHN ASHCRAFT, INDIVIDUALLY AND AS TRUSTEE FOR
              THE JOHN ASHCRAFT FAMILY TRUST 2012,
                                                                   Appellee.
                 _____________________________________
                 On Appeal from Cause No. 15-H-0082
              23rd District Court, Matagorda County, Texas
                   Hon. Ben Hardin, Judge Presiding

                          APPELLANT’S BRIEF

Charles R. “Skip” Watson, Jr.           Christopher Dove
 State Bar No. 20967500                  State Bar No. 24032138
 cwatson@lockelord.com                   cdove@lockelord.com
LOCKE LORD LLP                          Ken McKay
600 Congress Avenue, Suite 2200          State Bar No. 13690835
Austin, Texas 78701                      kmckay@lockelord.com
                                        A. Antroy Arreola
(512) 305-4700 (Telephone)               State Bar No. 24006769
(512) 305-4800 (Facsimile)               aarreo1a@1ocke1ord.com
                                        Harry Holmes Thompson
                                         State Bar No. 24088527
                                         hthompson@1ocke1ord.com
                                        LOCKE LORD LLP
                                        600 Travis Street, Suite 2800
                                        Houston, Texas 77002
                                        (713) 226-1200 (Telephone)
                                        (713) 223-3717 (Facsimile)
                      ATTORNEYS FOR APPELLANT
                    IDENTITY OF PARTIES AND COUNSEL

     Parties to the Proceeding                      Counsel


Copano NGL Services, LLC,           Charles R. “Skip” Watson, Jr.
     Appellant                       State Bar No. 20967500
                                     cwatson@lockelord.com
                                    LOCKE LORD LLP
                                    600 Congress Avenue, Suite 2200
                                    Austin, Texas 78701
                                    (512) 305-4700 (Telephone)
                                    (512) 305-4800 (Facsimile)

                                    Christopher Dove
                                     State Bar No. 24032138
                                     cdove@lockelord.com
                                    LOCKE LORD LLP
                                    600 Travis Street, Suite 2800
                                    Houston, Texas 77002
                                    (713) 226-1200 (Telephone)
                                    (713) 223-3717 (Facsimile)
                                          Appellate Counsel


                                    Ken McKay
                                     State Bar No. 13690835
                                     kmckay@lockelord.com
                                    A. Antroy Arreola
                                     State Bar No. 24006769
                                     aarreo1a@1ocke1ord.com
                                    Harry Holmes Thompson
                                     State Bar No. 24088527
                                     hthompson@1ocke1ord.com
                                    LOCKE LORD LLP
                                    600 Travis Street, Suite 2800
                                    Houston, Texas 77002
                                    (713) 226-1200 (Telephone)
                                    (713) 223-3717 (Facsimile)
                                          Trial and Appellate Counsel



                                   ii
      Parties to the Proceeding                        Counsel


John Ashcraft, Individually and as      John T. McDowell
Trustee for the John Ashcraft Family    State Bar No. 13570850
Trust 2012,                             jtm@houstontrialattorneys.com
      Appellee                          Kacy J. Shindler
                                        State Bar No. 24088407
                                        ks@houstontrialattorneys.com
                                        MCDOWELL WELLS, LLP
                                        603 Avondale Street
                                        Houston, Texas 77006
                                        (713) 655-9595 (Telephone)
                                        (713) 655-7868 (Facsimile)

                                        Danny Shindler
                                        dwshindler@sbcglobal.net
                                        MCDOWELL WELLS, LLP
                                        State Bar No. 18266200
                                        2232 Avenue G
                                        Bay City, Texas 77414
                                        (979) 245-4666 (Telephone)
                                        (979) 244-5342 (Facsimile)

                                        Vincent L. Marable III
                                        PAUL WEBB, P.C.
                                        State Bar No. 12961600
                                        trippmarable@sbcglobal.net
                                        221 N. Houston
                                        Wharton, Texas 77488
                                        (979) 532-5331 (Telephone)
                                        (979) 532-2902 (Facsimile)
                                              Trial and Appellate Counsel




                                       iii
                                             TABLE OF CONTENTS

                                                                                                                    Page

Identity of Parties and Counsel ................................................................................. ii
Index of Authorities ..................................................................................................vi
Statement of the Case................................................................................................. 1
Statement Regarding Oral Argument ........................................................................ 2
Issues Presented ......................................................................................................... 2
Statement of Facts ...................................................................................................... 3
Summary of the Argument......................................................................................... 6
Brief of the Argument ................................................................................................ 7
I.       Copano’s Objections Were Timely Filed, Invoking the District
         Court’s Jurisdiction.......................................................................................... 7
         A. The statutes that frame jurisdiction tolled the time for filing
            objections. ...................................................................................................7
         B. The deadline for making jurisdiction-triggering objections to the
            commissioner’s award does not begin until the clerk complies with
            Section 21.049. ...........................................................................................9
         C. Courts cannot vary the form of notice mandated by the Legislature
            for triggering the district court’s jurisdiction. ..........................................10
         D. Liberal construction cannot rewrite the statute or its requirements. ........13
II.      Findings of Fact and Conclusions of Law Are Not Only Immaterial,
         They Are Erroneous....................................................................................... 15 
Conclusion and Prayer ............................................................................................. 17 
Certificate of Compliance ........................................................................................ 19 
Certificate of Service ............................................................................................... 19 




                                                            iv
Appendix
1. Final Judgment without attachments (CR:151-53)
2. Findings of Fact & Conclusions of Law (SCR:17-22)
3. TEX. PROP. CODE § 21.018
4. TEX. PROP. CODE § 21.049
5. TEX. PROP. CODE § 21.061




                                      v
                                             INDEX OF AUTHORITIES

                                                                                                                    Page(s)
CASES
Am. Mut. Liability Ins. Co. v. Parker,
  144 Tex. 453, 191 S.W.2d 844 (Tex. 1945) ....................................................... 16

Black v. Shor,
   443 S.W.3d 154 (Tex. App.—Corpus Christi-Edinburg 2013, pet. denied) ..........
   ....................................................................................................................... 16, 17

Crown Life Ins. Co. v. Estate of Gonzalez,
  820 S.W.2d 121 (Tex. 1991) .............................................................................. 13

Few v. Charter Oak Fire Ins. Co.,
  463 S.W.2d 424 (Tex. 1971) .............................................................................. 12

First Nat’l Bank in Graham v. Sledge,
   653 S.W.2d 283 (Tex. 1983) .............................................................................. 10

Greater Houston P’ship v. Paxton,
  --S.W.3d--, No. 13-0745, 2015 WL 3978138 (Tex. June 26, 2015) .................. 14

Guest v. Dixon,
  195 S.W.3d 687 (Tex. 2006) .............................................................................. 13

IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,
  938 S.W.2d 440 (Tex. 1997) ........................................................................15, 17

John v. State,
   826 S.W.2d 138 (Tex. 1992) .......................................................................... 9, 10

Oncor Elec. Delivery Co. v. Schunke,
  No. 04-13-00067-CV, 2013 WL 6672494 (Tex. App.—San Antonio Dec.
  18, 2013, pet dism’d) ....................................................................................10, 15

Roccaforte v. Jefferson County,
  341 S.W.3d 919 (Tex. 2011) .............................................................................. 13

Schepps v. Presbyterian Hosp. of Dallas,
   652 S.W.2d 934 (Tex. 1983) .............................................................................. 10



                                                               vi
State v. Titan Land Dev., Inc.,
   No. 01-14-00899-CV, 2015 WL 3637982 (Tex. App.—Houston [1st
   Dist.] June 11, 2015, pet. filed) .......................................................................... 14

Tex. Dep’t of Transp. v. A.P.I. Pipe and Supply, LLC,
   397 S.W.3d 162 (Tex. 2013) ................................................................................ 9

CONSTITUTION AND STATUTES
TEX. PROP. CODE § 21.012 ......................................................................................... 3

TEX. PROP. CODE § 21.014 ......................................................................................... 3

TEX. PROP. CODE § 21.018 ................................................................................passim

TEX. PROP. CODE § 21.018(a) .................................................................................... 8

TEX. PROP. CODE § 21.049 ................................................................................passim

TEX. PROP. CODE § 21.061 ..................................................................................... 5, 8




                                                        vii
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

      This appeal is from a judgment dismissing Appellant Copano NGL Services,

LLC’s appeal to district court from a special commissioners’ condemnation award.

It raises the critical issue of district court jurisdiction that turns on the proper

application of a statute enacted to ensure the timeliness of objections filed to

invoke jurisdiction over commissioners’ decisions. That important issue arose in

the following context:

                            STATEMENT OF THE CASE

      A pipeline constructed by Copano required land held by Appellee John

Ashcraft, individually and as trustee of the John Ashcraft Family Trust 2012.

(CR:4.) Copano’s petition to condemn the land was assigned to the 23rd District

Court of Matagorda County, Texas, the Honorable Ben Hardin presiding.

      On April 21, 2015, the special commissioners’ award was filed with the trial

court, but it took until May 27 for the clerk to mail the notice in the manner

required by TEXAS PROPERTY CODE § 21.049.           (CR:29, 93.)    Copano timely

objected to the award on May 19. (CR:91.) But, Ashcraft moved for entry of

judgment on the award, arguing that the May 19 objections were untimely and the

trial court must adopt the Special Commissioners’ award as its judgment. (CR:94.)

      The trial court entered judgment on the award (CR:151), necessitating this

appeal. (CR:205.)
                     STATEMENT REGARDING ORAL ARGUMENT

      Copano believes the mistaken statutory construction that resulted in the

denial of jurisdiction over an administrative award for property taken by

condemnation merits full discussion of the issues and opportunity to address this

court’s questions.

                                 ISSUES PRESENTED

      The Supreme Court has consistently held that the Legislature enacted

Section 21.049 of the Texas Property Code to toll the time prescribed by Section

21.018 for parties to file objections that trigger a district court’s jurisdiction over

an appeal from a special commissioners’ decision in a condemnation. It has also

held that Section 21.049’s specific requirement (that “[n]ot later than the next

working day after the [commissioners’] decision is filed, the clerk shall send notice

of the decision by certified or registered United States mail … to the parties in the

proceeding, or to their attorneys of record”) is “mandatory” and must be strictly

complied with before the time for objections can begin to run. The provision must

be interpreted to promote, rather than limit, the parties’ right to appeal.

      1.     Did the district court err in entering judgment on the special
             commissioners’ award, and dismissing Copano’s appeal, even
             though Copano’s objections to the award were filed prior to 20
             days after the clerk gave the requisite notice by certified mail?




                                           2
      2.     Can filing findings of fact and conclusions of law in the absence
             of an evidentiary hearing, disputed facts, or evidence, alter an
             error of law in dismissing an appeal from a commissioners’
             award for want of jurisdiction, and entering judgment on the
             award instead?

                               STATEMENT OF FACTS

      This appeal presents a pure question of law: whether Copano timely filed its

objections to the special commissioners’ award. The facts forming the context for

this legal question are straightforward.

      The Copano Sweeny NGL Pipeline will transport natural gas liquids twenty-

three miles from the Eagle Ford Shale to purchasers and processors in Sweeny,

Texas. (CR:5-6.) Copano will own and operate the pipeline. (Id.) The pipeline

required a narrow easement across Ashcraft’s property that totaled about eight

acres. (CR:7-9, 16.)

      Copano and Ashcraft disagreed about the easement’s value, so Copano

exercised its power of eminent domain by filing a petition for condemnation under

TEXAS PROPERTY CODE § 21.012. (CR:5.) The district court appointed special

commissioners to value the easement as required by Tex. Prop. Code § 21.014.

(CR:24.) On April 21, 2015, the special commissioners issued their award of well

over a million dollars for the eight acre easement. (CR:31.)




                                           3
        The Texas Property Code sets forth what must happen next. Section 21.049

requires two things. First, the judge hearing the case must inform the clerk of the

special commissioners’ decision within one working day after the decision is filed.

Second, the clerk must immediately mail notice of the award to the parties by

certified or registered United States mail, return receipt requested:

        Not later than the next working day after the day the decision is filed,
        the clerk shall send notice of the decision by certified or registered
        United States mail, return receipt requested, to the parties in the
        proceeding, or to their attorneys of record, at their addresses of record.

TEX. PROP. CODE § 21.049. Here, the clerk’s office failed to discharge that duty.

        The duties are important because a party may appeal from the

commissioners’ findings by filing a statement of its objections under Texas

Property Code § 21.018.

        On the day the special commissioners issued their award, April 21, 2015,

Copano electronically filed the award with the district clerk. (CR:29.) Copano

specifically reminded the clerk of its duty to mail notice in the manner required by

Texas Property Code § 21.049:




(Id.)




                                            4
      But the clerk’s office did not mail the award until May 27, 2015, more than a

month later. (CR:93.)

      Copano filed its objections early – on May 19, 2015. (CR:91.) Thus, the

trial court should have proceeded to “try the case in the same manner as other civil

causes,” as required by Section 21.018(b).

      But, notwithstanding Section 21.049 Ashcraft filed a Motion for Entry of

Judgment claiming that the deadline for objections was actually May 18 under

Section 21.018. (CR:94.) Ashcraft asserted that the district court had to “adopt the

commissioners’ findings as the judgment of the court” (Id.; see TEX. PROP. CODE

§ 21.061.) The motion for judgment dealt with the clerk’s delay, which tolled the

deadine for objections, by ignoring it. (CR:94.)

      Copano’s response pointed out that the Supreme Court held that a clerk’s

delay in mailing the notice tolls the deadline for objections, and that even actual

notice of the award provides no exception to this mandatory tolling rule.

(CR:118.)    Nevertheless, the trial court entered judgment on the special

commissioners’ award. (CR:151.) Copano timely appealed. (CR:205.)

      After Copano appealed to this Court, Ashcraft raised new and untested

arguments about the effect of Copano’s electronic filing of the special

commissioners’ award by proposing findings of fact and conclusions of law.

(SCR:4-12.) Copano objected to the request because findings and conclusions may



                                         5
not be entered in cases where no evidentiary hearing was held, and because

Ashcraft sought to inject new legal theories after judgment was entered. (SCR:23.)

      The trial court did not hold an evidentiary hearing on Ashcraft’s Motion for

Entry of Judgment, nor did Ashcraft proffer evidence in support of its motion

(CR:94), no doubt because the only material relevant “facts” are undisputed and

ministerial – the date when the special commissioners’ award was filed, the date

when the clerk mailed that award to the parties, and the date Copano filed its

objections. (SCR:9.) But the trial court signed the findings and conclusions

proposed by Ashcraft, without changing a word. (SCR:17.)

                             SUMMARY OF THE ARGUMENT

      The trial court denied Copano’s statutory right of a trial de novo to appeal

the special commissioners’ condemnation award. That error was based on the trial

court’s failure:

      (i)    to follow Supreme Court precedent tolling the due date for
             filing jurisdiction-triggering objections to the award (that has
             guided litigants since 1992); and

      (ii)   to understand that the Legislature enacts statutes containing
             mandatory provisions that set forth the precise type of notice
             that must be given to trigger district courts’ jurisdiction over
             condemnation awards and the critical difference between their
             mandatory notice requirements and:

                   − actual notice; or

                   − notice of an e-filing.



                                              6
      Instead, the trial court wrongly determined that the Legislature’s mandatory,

party-neutral requirement that the clerks send notice by certified mail was enacted

solely to benefit landowners.

      That series of errors has denied Copano access to the courts and due process

guaranteed by our Constitution and statutes, as consistently interpreted by our

Supreme Court. It requires swift reversal.

                             BRIEF OF THE ARGUMENT

      Jurisdiction over a judicial review of an administrative determination –

especially when it involves taking of and compensation for property – cannot be

taken lightly. Here, the district court interpreted the Supreme Court’s construction

of a jurisdiction-tolling statute that was enacted to encourage appeals, to achieve

the opposite result. It refused jurisdiction that the Legislature enacted a statute to

ensure.

I.    Copano’s Objections Were Timely Filed, Invoking the District Court’s
      Jurisdiction.

      A.     The statutes that frame jurisdiction tolled the time for filing
             objections.

      The trial court’s jurisdiction over a commissioners’ award is governed by the

following.

      First, Section 21.049 requires two actions immediately upon the trial court’s

receipt of the commissioners’ report containing their decision:



                                          7
      (i)    “The judge of a court hearing a proceeding under this chapter
             shall inform the clerk of the court as to a decision by the special
             commissioners on the day the decision is filed or on the next
             working date after the day the decision is filed.”

      (ii)   “Not later than the next working day after the day the decision
             is filed, the clerk shall send notice of the decision by certified
             or registered United States mail, return receipt requested, to the
             parties in the proceeding, or to their attorneys of record, at their
             addresses of record.”

TEX. PROP. CODE § 21.049 (emphasis added).

      Second, a party’s written statement of its objections to the award “must be

filed on or before the first Monday following the 20th day after the day the

commissioners’ file their findings with the court.” TEX. PROP. CODE § 21.018(a).

Timely notice by the clerk of the commissioners’ decision in the form prescribed

by the Legislature is therefore critical because the trial court must enter “the

commissioners’ findings as the judgment of the court” unless the parties timely

object to the commissioners’ report. TEX. PROP. CODE § 21.061.

      The question of law that the district court got wrong is whether the clerk’s

failure to comply with Section 21.049’s precise requirement of notice by certified

mailing tolls the deadline in Section 21.018. The Supreme Court definitively has

answered that question.




                                           8
      B.     The deadline for making jurisdiction-triggering objections to the
             commissioner’s award does not begin until the clerk complies
             with Section 21.049.

      The Supreme Court has repeatedly answered the question by holding that the

notice required by the Legislature in Section 21.049 is “mandatory.” John v. State,

826 S.W.2d 138, 140 & n.3 (Tex. 1992). That means the “time to object” to the

special commissioners’ award “is tolled until the clerk sends the required notice

pursuant to section 21.049.” Id. at 141 (emphasis added).

      The requirement is mandatory for jurisdiction over appeals by all parties,

even though John spoke in terms of tolling the time for the landowner’s objections.

The Court subsequently made it clear that the “time for making objections” that

trigger the trial court’s jurisdiction is tolled “if the parties are not given proper

notice” as required by Section 21.049. Tex. Dep’t of Transp. v. A.P.I. Pipe and

Supply, LLC, 397 S.W.3d 162, 167 n.18 (Tex. 2013) (emphasis added) (citing

John, 826 S.W.2d at 141 n.5).        The Supreme Court has never varied from

construing Section 21.049’s clerk’s notice by certified mail requirement as tolling

the time allotted by the more general statute, Section 21.018, until the clerk sends

“proper” notice in the form prescribed by the Legislature.




                                         9
      C.     Courts cannot vary the form of notice mandated by the
             Legislature for triggering the district court’s jurisdiction.

             1.    Actual notice will not suffice.

      Courts are bound by the Legislature’s requirement. Thus, not even actual

notice by a clerk personally handing a party’s attorney “a file-stamped copy of the

notice” of the commissioners’ decision will be allowed to substitute for Section

21.049’s requirement that the clerk give notice by certified mail. Oncor Elec.

Delivery Co. v. Schunke, No. 04-13-00067-CV, 2013 WL 6672494, *3 (Tex.

App.—San Antonio Dec. 18, 2013, pet. dism’d).

      A mandatory notice statute means that it must be strictly applied. See

Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 936-38 (Tex. 1983). By

contrast, when a statute’s notice requirement can be satisfied by actual notice, it

says so. See, e.g., First Nat’l Bank in Graham v. Sledge, 653 S.W.2d 283, 287

(Tex. 1983). Thus, actual knowledge of an award by an attorney filing it and

receiving a file-stamped copy from the clerk will not satisfy the clerk’s duty to

give “proper” statutory notice by mailing the notice of decision as required by

Section 21.049. Oncor at *3-4.

      Equally important, in Oncor the court also recognized that parties are

“entitled to rely on the rule articulated in John” in calculating the time for filing

their objections to the award. Id. at *4. That has been the law since John was

decided in 1992, and that is what Copano did here.


                                         10
             2.     E-filing will not suffice.

      After this appeal was filed, Ashcraft sought to raise an equally unavailing

theory by going beyond the record for findings and conclusions regarding notice

by e-filing. But if being handed a file-stamped copy of the award does not satisfy

the clerk’s “mandatory” duty to immediately give notice by certified mail, an

electronic notice of filing will hardly suffice for proper compliance. Thus, the trial

court’s belated finding of notice by e-filing cannot save the judgment for three

independent reasons.

      First, the clerk’s office, having been specifically cautioned of its duty to

mail the award to the parties, performed that duty on May 27, 2015, indicating that

the clerk’s office knew that its duty had to be performed via the U.S. mail.

      Second, there is no evidence that the commissioners’ decision containing

their award was “e-mailed” to Copano’s counsel on April 21, or any other day.

(Copano believes that a hearing would have established that the clerk has no record

of emailing notice.)

      And if “emailing” is referring to e-filing the award, there is again no

evidence when or even if the file-marked award was electronically sent to

Copano’s counsel. Instead, the argument reflects a fundamental misunderstanding

of the process, which, again, is not in the record:




                                          11
      Within minutes of e-filing the award, a “filing-submitted” reply transmits the

fact of filing, but not a copy of what was filed. Thus, a file-stamp on a document

subsequently accepted for filing does not mean the document was actually

returned that day.    The same procedure applies to a later “filing accepted”

electronic reply, though it supplies a link to a file-stamped copy on the

eFile.Texas.gov server.

      Neither is of record, though Copano believes the trial court’s electronic

docket would show the “e-filing” was not “accepted” until May 1. That means that

even if access to a link showed for the first time on May 1, that Copano’s filing

was “accepted” the availability of a link cannot substitute for the mandatory

statutory requirement of certified mail. But even if a “filing accepted” notice could

be substituted for the Legislature’s mandatory certified mail notice provision

(which it cannot), Copano’s May 19 filing would be timely even under Ashcraft’s

belated theory.

      Third, courts cannot by rule negate or alter statutory requirements enacted

by the Legislature. The Supreme Court always recognizes that its rule-making

power is limited to establishing rules and procedures “not inconsistent with the law

of the State” by former Art. V, Sec. 25 of the Texas Constitution. Thus, “when a

rule of the court conflicts with a legislative enactment, the rule must yield.” Few v.

Charter Oak Fire Ins. Co., 463 S.W.2d 424, 425 (Tex. 1971).



                                         12
      As a result, neither Section 21.049’s certified mailing requirement, nor its

tolling of Section 21.018’s filing deadline, can be repealed or altered by Rule 21’s

electronic filing and service provisions any more than Rule 21a’s personal service

provision could alter it.

      Thus, Legislative tolling until mandatory statutory requirements are satisfied

cannot be circumvented by hand delivery or service by access to e-filing links.

The mandatory requirement of Section 21.049 was not satisfied until after

Copano’s objections were timely filed.

      D.     Liberal construction        cannot   rewrite   the   statute   or   its
             requirements.

      Ultimately Ashcraft must rely on liberal construction in favor of the

landowner to rewrite both the Legislature’s clear notice by certified mail

requirement in Section 21.049 and the Supreme Court’s consistent interpretation of

that requirement. That argument for denying jurisdiction over Copano’s appeal

flounders in two fundamental ways.

      First, the goal of liberal construction is to ensure that “the right of appeal

should not be lost due to procedural technicalities.”       Roccaforte v. Jefferson

County, 341 S.W.3d 919, 924 (Tex. 2011) (citing Guest v. Dixon, 195 S.W.3d 687,

688 (Tex. 2006); Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121-22

(Tex. 1991) (liberal construction requires “decisions of the courts of appeals turn

on substance rather than procedural technicality”)).


                                         13
      Ashcraft and the trial court missed the point of why statutes are liberally

construed – to ensure jurisdiction over appeals, not to deny it. See, e.g., State v.

Texas Titan Land Dev., Inc., No. 01-14-00899-CV, 2015 WL 3637982, at *5 (Tex.

App.—Houston [1st Dist.] June 11, 2015, pet. filed) (holding that under liberal

construction, Section 21.018’s time requirement is determined by the “mandatory”

mailing requirement in Section 21.049, and may not logically reduce the State’s

time to object to an award, requiring reversal of the dismissal of the State’s

appeal).

      Indeed, it makes no sense for a party benefitting from liberal construction

designed to enable an appeal, to turn around and use it to prevent an appeal.

Liberal construction cannot eliminate a tolling statute that grants a right of appeal

to both parties.

      Second, liberal construction “must remain grounded in the statute’s

language.” Greater Houston P’ship v. Paxton, --S.W.3d--, No. 13-0745, 2015 WL

3978138, at *8 (Tex. June 26, 2015). It is not “tantamount to boundless reach.”

Id. at *12. Instead, like “any other extra-textual construct,” liberal construction

must yield to “plain and unambiguous language.” Id.

      That is what we have here – plain and unambiguous language requiring

notice by certified mail to all “parties,” that is consistently interpreted by the

Supreme Court to require tolling the jurisdiction window for objecting to



                                         14
commissioners’ awards. The goals of the Legislature and the Court are the same –

reaching the merits of a party’s appeal of a condemnation award.

      To sum up, Ashcraft is asking this Court to make law by ignoring Supreme

Court holdings that the deadline for filing objections is tolled until the clerk

complies with the mandatory provisions of Section 21.049 by giving notice by

certified mail. Here as in Oncor the parties had every right to rely on both the

Legislature’s mandatory provision and Supreme Court precedent construing it.

The district court erred in entering judgment on the commissioners’ findings. It

must be reversed so Copano can have its day in court.

II.   Findings of Fact and Conclusions of Law Are Not Only Immaterial,
      They Are Erroneous.

      Rather than supporting Ashcraft’s judgment, the trial court’s immaterial and

erroneous findings of fact and conclusions of law reveal instead that when

jurisdiction is decided as a pure question of law, findings and conclusions cannot

be made in the absence of evidentiary hearings, let alone absent evidence of

disputed facts. They create a false illusion of resolving facts when none were

heard or needed to be decided.

      Thus, where the trial court renders judgment without an evidentiary hearing,

“findings and conclusions have no purpose and should not be requested, made, or

considered on appeal.” IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d

440, 442-43 (Tex. 1997). “Therefore, even when the trial court receives evidence,


                                        15
findings and conclusions are only appropriate if the trial court is called upon to

determine questions of fact upon conflicting evidence.” Black v. Shor, 443 S.W.3d

154, 166 (Tex. App.—Corpus Christi-Edinburg 2013, pet. denied) (emphasis

added).

       Ashcraft requested findings and conclusions after this appeal was perfected

for the illegitimate purpose of raising new arguments to shore-up a teetering

judgment. Ashcraft’s motion for entry of judgment gave no explanation for why

the clerk’s delay had not tolled the objection deadline. (CR:94.) As recounted in

Copano’s objections,1 Ashcraft’s only argument had been that Copano’s receipt of

a hand-delivered paper copy was sufficiently similar to “certified or registered

United States mail, return receipt requested” to prevent tolling. (CR:24.) After

judgment was entered, Ashcraft apparently saw that its arguments cannot support

its judgment. But proposing new findings and conclusions on equally unavailing

arguments about the effect of Copano’s electronic filing of the award cannot save

this judgment. (Id.)

       The entire purpose of that exercise was illegitimate. Texas law has long

recognized that “an appellate court should not decide a case upon a theory different

from that upon which it was pleaded and tried.” Am. Mut. Liability Ins. Co. v.

Parker, 144 Tex. 453, 460, 191 S.W.2d 844, 848 (Tex. 1945).
1
  The parties discussed the motion with the trial judge, but no evidentiary hearing was held, and
no transcript was taken.


                                               16
      In sum, the findings and conclusions were improper and cannot support the

trial courts’ error of law in entering judgment and dismissing Copano’s appeal.

They must not be considered by this Court. IKB, 938 S.W.2d at 443; Black, 443

S.W.3d at 166. The erroneous judgment must be reversed.

                              CONCLUSION AND PRAYER

      The trial court was led into error that denied Copano its right to appeal the

commissioners’ decision to the district court. Copano’s objections were timely

filed both as a matter of law and of sound public policy enacted by the Legislature.

      Accordingly, Appellant, Copano NGL Services, LLC, respectfully prays that

the Honorable Court of Appeals reverse the judgment of the district court and

remand for trial with Appellant receiving its costs at trial and on appeal, and all

other relief it is entitled to receive consistent with the opinion of this Court.

                                            Respectfully submitted,

                                            LOCKE LORD LLP

                                        By: /s/ Charles R. “Skip” Watson, Jr.
                                           Charles R. “Skip” Watson, Jr.
                                            State Bar No. 20967500
                                            cwatson@lockelord.com
                                           600 Congress Avenue, Suite 2200
                                           Austin, Texas 78701
                                           (512) 305-4700 (Telephone)
                                           (512) 305-4800 (Facsimile)

                                            Christopher Dove
                                             State Bar No. 24032138
                                             cdove@lockelord.com


                                           17
 Ken McKay
  State Bar No. 13690835
  kmckay@lockelord.com
 A. Antroy Arreola
  State Bar No. 24006769
  aarreo1a@1ocke1ord.com
 Harry Holmes Thompson
  State Bar No. 24088527
  hthompson@1ocke1ord.com
 LOCKE LORD LLP
 600 Travis Street, Suite 2800
 Houston, Texas 77002
 (713) 226-1200 (Telephone)
 (713) 223-3717 (Facsimile)

 COUNSEL FOR APPELLANT




18
                          CERTIFICATE OF COMPLIANCE

      I certify that this Appellant’s Brief contains 3,201 words (excluding the

sections excepted under Texas Rule of Appellate Procedure 9.4(i)(1)).

                                              /s/ Charles R. “Skip”Watson, Jr.
                                                   Charles R. “Skip” Watson, Jr.




                            CERTIFICATE OF SERVICE

      I hereby certify that on October 5, 2015, a true and correct copy of the

foregoing was served via EFileTx.Gov e-service upon the following:

   Vincent L. Marable III                      John T. McDowell
   trippmarable@sbcglobal.net                  jtm@houstontrialattorneys.com
   PAUL WEBB, P.C.                             Kacy J. Shindler
   221 N. Houston                              ks@houstontrialattorneys.com
   Wharton, Texas 77488                        MCDOWELL WELLS, LLP
   (979) 532-5331 (Telephone)                  603 Avondale Street
   (979) 532-2902 (Facsimile)                  Houston, Texas 77006
                                               (713) 655-9595 (Telephone)
                                               (713) 655-7868 (Facsimile)
   Danny Shindler
   dwshindler@sbcglobal.net
   MCDOWELL WELLS, LLP
   2232 Avenue G
   Bay City, Texas 77414
   (979) 245-4666 (Telephone)
   (979) 244-5342 (Facsimile)

   Counsel for Appellee

                                              /s/ Charles R. “Skip” Watson, Jr.
                                                 Charles R. “Skip” Watson, Jr.



                                         19
                    No. 13-15-00342-CV
                  _____________________________________

                  Court of Appeals
             Thirteenth District of Texas
                  _____________________________________

                       COPANO NGL SERVICES, LLC,
                                                               Appellant,
                                     V.

            JOHN ASHCRAFT, INDIVIDUALLY AND AS TRUSTEE FOR
                THE JOHN ASHCRAFT FAMILY TRUST 2012,
                                                               Appellee.
                  _____________________________________
                   On Appeal from Cause No. 15-H-0082
                23rd District Court, Matagorda County, Texas
                     Hon. Ben Hardin, Judge Presiding


                                 APPENDIX


Tab
1. Final Judgment (CR:151-53)
2. Findings of Fact & Conclusions of Law (SCR:17-22)
3. TEX. PROP. CODE § 21.018
4. TEX. PROP. CODE § 21.049
5. TEX. PROP. CODE § 21.061
                                                  NO. 15-H-0082

COPANO NGL SERVICES LLC,                                                                              IN THE DISTRICT        COURT
         Plaintifﬂ

  .<
                                                                                                     MATAGORDA COUNTY, TEXAS
JOHN ASHCRAFT, INDIVIDUALLY
                                                          <ﬂ><ﬂ'I€l7J<00¢00¢2U#<ﬂJ<ﬂ><ﬂ>€ﬂ>C00




AND AS TRUSTEE FOR THE JOHN
ASHCRAFT FAMILY TRUST
         Defendant                                                                                   23RD JUDICIAL       DISTRICT
                                               FINAL JUDGMENT
         Be   it   remembered     that   John Ashcraft, Individually and as Trustee for the John Ashcraft

2012 Family Trust          is   the   owner of   the real property that                                      Copano    NGL   Services   LLC   is


condemning and acquiring under and by                   virtue                                   of these condemnation proceedings.         The

permanent and temporary easements the subject of                                                    this   proceeding are more speciﬁcally

described in Copano’s Original Petition for Condemnation and described in Exhibit                                                “A”    attached

hereto (the “Easements”).


         The Award of Special Commissioners              in this                                  case was executed and signed by the three

Special Commissioners           on April 21, 2015. The Award of Special Commissioners was ﬁled with

the    Matagorda County         District Clerk   by Copano on April                                        21, 2015.   The Award of     Special

Commissioners        is   attached to this Final Judgment as Exhibit “B”.                                              The Award of     Special

Commissioners provides,          in part, as follows:


         After hearing and considering such evidence, the undersigned Special Commissioners
         ﬁnd, determine, and assess damages to be paid by Copano               Services LLC for this             NGL
         condemnation, according to the statute pertaining to assessment of such damages that is
         set forth at Section 21.042 of the Texas Property Code, in the total amount of: one million
         forty three thousand eight hundred thirty and no cents ($1,043,830.00) to Defendant.
         No      objections to the   Award were ﬁled on               or before the ﬁrst         Monday      following the 20th

day   after the     Award was ﬁled           as   mandated by Tex.           -Prop.   Code      § 21.018.         Defendants John

Ashcraft, Individually and as Trustee for the John Ashcraft                       2012 Family Trust ﬁled a Motion               for


Entry of Judgment. The Court, having considered the Motion for Entry of Judgment, Plaintiffs

response and argument of counsel has determined that Defendants’ Motion                                      is   meritorious and

should be granted.

         It is     ORDERED, ADJUDGED                and    DECREED that the ﬁndings                 in the    Award of Special

Commoners are adopted           as the judgment of this court.


         It   is   further   ORDERED, ADJUDGED                        and    DECREED            that the    Award of      Special

Commissioners be recorded with thisjudgment                      in the     minutes of this court.


         It   is    ORDERED, ADJUDGED                      and       DECREED          that    Defendants,         John Ashcraft,

Individually and as Trustee for the John Ashcraft                    2012 Family Trust, have judgment against and

recover from        Copano   NGL     Services       LLC, the sum of one million                  forty three       thousand eight

hundred and         thirty dollars ($1,043,830.00),              which      shall bear       post-judgment interest        at   5%
compounded annually beginning on the date this judgment                          is   signed.


         It is   ORDERED, ADJUDGED                  and    DECREED that Copano NGL                   Services       LLC, recover

from the Defendants, John Ashcraft, Individually and as Trustee for the John Ashcraft 2012

Family Trust, a ﬁfty-foot            (50')    wide non-exclusive permanent right-of-way and temporary

easement more speciﬁcally described                  in Exhibit       “A”     attached hereto, in and to that certain

property situated in Matagorda County, Texas described in the incorporated                                             Award of

Commissioners, and the same           is   vested in    Copano       NGL Services LLC.
         It is     ORDERED, ADJUDGED                 and   DECREED            that all costs      of court are taxed against

Copano    NGL       Services,   LLC,       plaintiff.     All writs and process as                may   be necessary in the


                                                                 2
enforcement and collection of this judgment and the costs of court             may    issue.


          This   is   a ﬁnal, appealable judgment.



SIGNED                                          ,    2015.



                                                                    ‘
                                                      JUDGE PRESIDING

APPROVED AS TO FORM:
MCDOWELL WELLS, LLP
                                                             QNHFS
/s/John   T.McDowell
John T.   McDowell
SBN   13570850
jtm@houstontrialattorneys.com
Kacy J. Shindler                                                              "LED
SBN 24088407
                                                              .




                                                             at'i:_..“ﬁoIock.F_-__M.
ks@houst0ntrialatt0rneys.com
603 Avondale Street                                                       JUN 2 4      Z015
Houston, Texas 77006
Telephone: (713) 655-9595                                               Ja.m,i_e_G-£%11!2@142_2.:_2        2




Facsimile: (713) 655-7868                                    Clerk of   Dl§tr%       atagorda Co., Texas
                                                                                                 DEPUTY

Danny Shindler
SBN: 18266200
dwshindler@sbcgl0bal.net
2232 Avenue       G
Bay City,      TX 77414
Telephone: 979-245-4666
Facsimile: 979-244-5342

PAUL WEBB, P.C.
Vincent L. Marable III
State Bar No. 12961600
221 N. Houston
Wharton, Texas 77488
Telephone: (979) 532-5331
Facsimile: (979) 532-2902
ATTORNEYS FOR DEFENDANTS
John Ashcraft, Individually and as
Trustee of the John Ashcraft 2012 Family Trust


                                                         3
                                                                           MN-ICU
                                                                     at &go' cfock
                                                                          AUG   1 0 2015
                                 NO. 15-H-0082


COPANO NGL SERVICES LLC,                           IN THE DISTRICT COURT OF

      Plaintiff,

V.                                       S         MATAGORDA COUNTY, TEXAS

JOHN ASHCRAFT, INDIVIDUALLY
AND AS TRUSTEE FOR THE JOHN
ASHCRAFT FAMILY TRUST 2012,              S

      Defendants.                        S         23" JUDICIAL DISTRICT


            FINDINGS OF FACT AND CONCLUSIONS OF LAW


      On June 24, 2015, this Court signed a final judgment in favor of

Defendants John Ashcraft, Individually and as Trustee for the John Ashcraft

Family Trust 2012 ("Ashcraft"). Ashcraft requested that this Court make

findings of fact and conclusions of law on July 9, 2015. The final judgment

rendered by this Court on June 24, 2015, was made in accordance with

Section 21.061 of the Texas Property Code, following a hearing conducted on

June 15, 2015. The findings of fact made by this Court are based on

stipulations of the parties at the June 15, 2015, hearing conducted in this

case and this Court's judicial notice of the district clerk's file in this matter.

I.    FINDINGS OF FACT

      1.     Plaintiff COPANO NGL SERVICES LLC ("Copano"), filed via a-file
             its Petition for Condemnation on March 4, 2015.
2.   An Order Appointing Special Commissioners was signed on
     March 16, 2015.

3.   An Order Striking Special Commissioner and Replacing With First
     Alternate was signed on April 1, 2015.

4.   On April 21, 2015, the Special Commissioners made an award to
     Ashcraft of one million forty-three thousand eight hundred thirty
     dollars ($1,043,830.00).

5.   Copano offered to file the award of the Special Commissioners
     with the district clerk.

6.   Copano filed the Special Commissioners' Award with the district
     clerk via e-file on April 21, 2015,

7.   Copano received notice of its filing electronically on April 21,
     2015, from the Matagorda County District Clerk.

8.   Copano had notice of the filing of the Special Commissioners'
     award on April 21, 2015.

9.   The Matagorda County District Clerk sent notice of the decision
     by the Special Commissioners to Copano and Ashcraft by e-mail
     on April 21, 2015, and Copano and Ashcraft received such e-mail
     notice on April 21, 2015.

10. Copano filed its objection to the Special Commissioners' Award
    on May 19, 2015.

11. Ashcraft filed Defendants' Motion for Entry of Judgment on June
    9, 2015, asserting that Defendants were entitled to judgment in
    accordance with Section 21.049 of the Texas Property Code
    because no timely objection was made to the findings of the
    Special Commissioners by May 18, 2015.




                              2
II. CONCLUSIONS OF LAW

   1.   Section 21.018(a) of the Texas Property Code fixes the objections
        deadline to the findings of the Special Commissioners as "the first
        Monday following the 20th day after the commissioners file their
        findings with the court."

   2,   The statutory deadline to file timely objections to the findings of
        the Special Commissioners was May 18, 2015. See Tex. Prop.
        Code Section 21.018.

   3.   No party filed a timely objection to the findings of the Special
        Commissioners.

   4.   Copano admitted to notice of the filing of the Special
        Commissioners' award with the Matagorda County District Clerk
        and to knowledge of the statutory deadline to file objections to the
        findings of the Special Commissioners.

   5.   Copano did not timely file an objection to the findings of the
        Special Commissioners by May 18, 2015, and intentionally waited
        until after May 18, 2015, to file its objection, to see if Ashcraft
        intended to object to the findings of the Special Commissioners.

   6.   The timely filing of objections to the findings of the Special
        Commissioners converts an "administrative" matter into a judicial
        one. City of Tyler v. Beck, 196 S.W.3d 784, 786 (Tex. 2006).

   7    Without timely objections to the findings of the Special
        Commissioners, the trial court does not have jurisdiction to
        entertain an "appeal" of the Special Commissioners' award and
        must instead terminate the case by rendering judgment "on the
        award" as a matter of ministerial duty. Pearson v. State, 315
        S.W.2d 935, 938 (Tex. 1958).

   8.   The Legislature has codified this principle in Property Code
        Section 21.061: "If no party in a condemnation proceeding files
        timely objections to the findings of the special commissioners, the

                                   3
     judge of the court that has jurisdiction of the proceeding shall
     adopt the commissioners' findings as the judgment of the court."
     Tex. Prop. Code Section 21.061. (emphasis supplied)

9.   Sections 21.018(a) and 21.061 of the Texas Property Code limit
     the jurisdiction of the trial court when timely objections are not
     filed.

10. The Legislature has chosen not to create any statutory exceptions
    to the operation of Sections 21.018(a) and 21.061.

11. Texas Property Code Section 21.049 provides as follows:

           Not later than the next working day after the day
           the [Special Commissioners'] decision is filed,
           the clerk shall send notice of the decision by
           certified or registered United States mail, return
           receipt requested, to the parties in the
           proceeding, or to their attorneys of record, at
           their addresses of record.

12. The Legislature enacted Section 21.049 to ensure that
    landowners received notice of the triggering event to file
    objections to the findings of the Special Commissioners. See
    John v. State, 826 S.W.2d 138, 140-41 (Tex. 1992).

13. Section 21.049 is not designed to alter the operation of Sections
    21.018 and 21.061, but instead to ensure that landowners know
    when the period has started in order to object. See id.

14. Given Section 21.049's limited purpose, the Supreme Court has
    recognized only one circumstance in which Section 21.049 alters
    the operation of the jurisdiction-limiting provisions in Sections
    21.018 and 21.061.

15. When landowners receive no notice of the filing of a Special
    Commissioners' award, their objections deadline is tolled until the
    court clerk sends notice. John, 826 S.W.2d at 140.

                                4
16. "When a statute provides the method by which notice shall be
    given in a particular instance, the notice provision must be
    followed with reasonable strictness." John, 826 S.W.2d at 141 n.
    4. (emphasis supplied)

17. The notice of the award of the Special Commissioners provided
    by the Matagorda County District Clerk by e-mail on April 21,
    2015, followed Section 21.049 with reasonable strictness. See
    Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 928-27 (Tex.
    2011) (holding that hand-delivered notice satisfies a statute's
    notice requirement even when the statute's plain language
    requires notice by certified or registered mail); First Nat'l Bank in
    Graham v. Sledge, 653 S.W.2d 283, 287 (Tex. 1983) (holding "the
    method of delivery is immaterial" whenever "notice is actually
    received"); Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d
    934, 936 (Tex. 1983) (Provisions [of a notice statute] which are
    not of the essence of the thing to be done, but which are included
    for the purpose of promoting the proper, orderly and prompt
    conduct of business, are not generally regarded as mandatory.").

18. A notice statute calling for delivery by registered or certified mail
    can be satisfied by an alternative method of service. Washington
    v, Related Arbor Court, LLC, 357 S.W.3d 676, 681 (Tex.
    App.—Houston [14"' Dist.] 2011, no pet.) ("[S]tatutory notice
    requirements may be satisfied by a method of service other than
    the prescribed statutory method when the recipient acknowledges
    receipt and therefore has the actual notice the statutory
    requirement is intended to guarantee."); Goforth v. Bradshaw, 296
    S.W.3d 849, 851 (Tex. App.—Texarkana 2009, no pet.) (expert
    reports sent by regular mail within statutory deadline, which
    defendants acknowledged receiving, were timely served even
    though statute required the documents to be served through
    registered or certified mail); Spiegel v. Strother, 262 S.W.3d 481,
    486 (Tex. App.—Beaumont 2008, no pet.) (holding the same when
    plaintiff sent an expert report by priority mail rather than registered
    or certified mall and the expert acknowledged timely receipt of the
    mailing); Wesco Distrib., Inc. v. Westport Grp., Inc., 150 S.W.3d
    553, 559 (Tex. App.—Austin 2004, no pet.) (holding that even

                                 5




                                21
             when a notice requirement "plays a critical role In achieving the
             purposes of (a) statute," "technical defects" In method of service
             are "excused by substantial compliance"); Netherland v. Wittner,
             862 S.W,2d 786, 787 (Tex. App.—Houston (14" Dist.] 1983, writ
             ref'd n.r.e.) (holding proper notice was delivered despite
             registered-mall requirement when appellant admitted actual notice
             of trial setting by phone call and unregistered mall); Hill v. W.E.
             §rittaln. (not, 408 S.W.2d 803, 807 (Tex. Civ. App.—Fort Worth
             1988, no writ) (holding variance in method of service was
             immaterial because service actually occurred).
        19. E-mail notice of the award of the Special Commissioners to
            Copano and Ashcroft by the Matagorda County District Clerk on
            April 21, 2018, compiled with Texas Property Code Section
            21.049,

        20. Texas Rule of Civil Procedure 21(f)(10) provides as follows: "(10)
            Electronic Notices From the Court, The clerk may send notices,
            orders, or other communications about the case to the party
            electronically. A court seal may be electronic."

Date:          a.A......0yowar 10      1 2015




                                     DISTRICT JUDGE PRESIDING




                                       e
§ 21.018. Appeal From Commissioners' Findings, TX PROPERTY § 21.018




  Vernon's Texas Statutes and Codes Annotated
    Property Code (Refs & Annos)
      Title 4. Actions and Remedies
        Chapter 21. Eminent Domain (Refs & Annos)
           Subchapter B. Procedure (Refs & Annos)

                                              V.T.C.A., Property Code § 21.018

                                     § 21.018. Appeal From Commissioners' Findings

                                                          Currentness


(a) A party to a condemnation proceeding may object to the findings of the special commissioners by filing a written statement
of the objections and their grounds with the court that has jurisdiction of the proceeding. The statement must be filed on or
before the first Monday following the 20th day after the day the commissioners file their findings with the court.


(b) If a party files an objection to the findings of the special commissioners, the court shall cite the adverse party and try the
case in the same manner as other civil causes.


Credits
Acts 1983, 68th Leg., p. 3501 ch. 576, § 1, eff. Jan. 1, 1984.


V. T. C. A., Property Code § 21.018, TX PROPERTY § 21.018
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
§ 21.049. Notice of Decision of Special Commissioners, TX PROPERTY § 21.049




  Vernon's Texas Statutes and Codes Annotated
    Property Code (Refs & Annos)
      Title 4. Actions and Remedies
        Chapter 21. Eminent Domain (Refs & Annos)
           Subchapter C. Damages and Costs (Refs & Annos)

                                                V.T.C.A., Property Code § 21.049

                                   § 21.049. Notice of Decision of Special Commissioners

                                                            Currentness


The judge of a court hearing a proceeding under this chapter shall inform the clerk of the court as to a decision by the special
commissioners on the day the decision is filed or on the next working day after the day the decision is filed. Not later than the
next working day after the day the decision is filed, the clerk shall send notice of the decision by certified or registered United
States mail, return receipt requested, to the parties in the proceeding, or to their attorneys of record, at their addresses of record.


Credits
Added by Acts 1984, 68th Leg., 2nd C.S., ch. 18, § 1(d), eff. Oct. 2, 1984.


V. T. C. A., Property Code § 21.049, TX PROPERTY § 21.049
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                        © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     1
§ 21.061. Judgment on Commissioners' Findings, TX PROPERTY § 21.061




  Vernon's Texas Statutes and Codes Annotated
    Property Code (Refs & Annos)
      Title 4. Actions and Remedies
        Chapter 21. Eminent Domain (Refs & Annos)
           Subchapter D. Judgment

                                              V.T.C.A., Property Code § 21.061

                                     § 21.061. Judgment on Commissioners' Findings

                                                          Currentness


If no party in a condemnation proceeding files timely objections to the findings of the special commissioners, the judge of the
court that has jurisdiction of the proceeding shall adopt the commissioners' findings as the judgment of the court, record the
judgment in the minutes of the court, and issue the process necessary to enforce the judgment.


Credits
Acts 1983, 68th Leg., p. 3507, ch. 576, § 1, eff. Jan. 1, 1984.


V. T. C. A., Property Code § 21.061, TX PROPERTY § 21.061
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 1
HYPERLINKED MATERIAL
                                        NO. _ _ _ __



COPANO NGL SERVICES LLC,                             §                     IN THE DISTRICT COURT
                                                     §
          Plaintiff.                                 §
                                                     §
                                                     §
vs.                                                  §
                                                     §       OF MATAGORDA COUNTY, TEXAS
                                                     §
JOHN ASHCRAFT, INDIVIDUALLL Y                        §
AND AS TRUSTEE OF THE JOHN                           §
ASHCRAFT FAMILY TRUST 2012,                          §
                                                                    Mlll;ord1 Couoly • 23'11 Dlltrtct Co..rt
                                                     §
          Defendant.                                 §              _ _ _ JUDICIAL DISTRICT

                       ORDER Af POINTING SPECIAL COMMISSIONERS

          BE IT REMEMBERED that on this day came to be heard Copano NGL Services LLC,

Plaintiff, who has filed this action with the District Clerk of Matagorda County, Texas, In order

to commence a condemnation proceeding to condemn certain property in the above-styled

proceeding. The Court being of the opinion that Special Commissioners should be appointed for

such proceeding, and it is further appearing that:

Name:     L1'ncj.c..1d Thed'f.5Clt'\                     Phone:   {CJIJ'lf
                                                                       •
                                                                           .J ~.J - 811. g

Jliame:     Voe... Crbt\c.,,                             Phone:   {;;?ti} J'/0- ,2.()'1;3

                                                         Phone:   @1') tflK-tJ717

(the "Soecjal Commjssjoners") are three disinterested real property owners who reside in




H0\::0027719 00001:1771330• I


                                                                                            SCANNED
                               k                                                    %
Matagorda County. Texan, who are qualiﬁed               to eerve ae Special   Commieeionera herein;

        FURTHER,      the Court being of the opinion that              two altematea ehould be appointed         for

euch proceeding, and   it la       further appearing   titat   the following are   two   dlalntereated teal property

ownere who     mide    in    Mategorda County. Texas and who are qualiﬁed                      to eerve ae apecial

oomminionera hereby eppointa             the following at alternate Special Commiaaionere.            who   ehall act

aa Special   Commieeionera          in the event   one or more of the foregoing Special Commiaeionen are

struck or unable to nerve:

Name:                                                             mn=(911) i 79" 550/

N=m== _L4.|.._lQ.ta£iu@                                           Phone:                                     7
(the "A11emgtg|“);   and    it ia   therefore

        ORDERED. ADJUDGED AND DECREED                              that the laid Special    Commieelonere herein

above named be. and the aeme are hereby appointed. Special Commiaaionere (or one or more of




                                                                           i,
the Altematee if need be) to promptly achedule a heering at the earlieat practical time following

twenty (20) daye after      this    appointment end aaaeaa damagee occasioned by the condemnation of

the property at lteue in the above-etyled proceeding.

        stomzo milk dey of               be fee k          .2ots.




                                                                                   JUDGE rnsstomo
                 t»-WEFL                           .




                      MAR ll          2015




MOI-.WI7'7l9I%l:l77l!!0\l
                                                                                                                     Filed   4/21/2015 4 4312 PM
                                                                                                                                  Jamie C Bludau

                                                                                                                       Matagorda County Texas
                                                                                               coo Tran it. suiﬁtzzuitanie Wurtz Deputy
                                                                                               Houston. Tcxus 77002
                                                                                           Tclcphonci 713-Z26-1200
                                                                                                   Fax:       7132233717
                                                                                                   \\\\\\'.1oc1<c1or(1.com


                                                                                                                    Kcn \lcKuy
                                                                                    Di1"cctTc1cphonc: 713-226-1127
                                                                                           Direct l’z\.‘<: 7 3-Z2‘)-Z592
                                                                                                                l




                                                                                             1<mcl<L1\'(<t.   1oc1<c10i'tl.c0m



                                           April 21,   2015
VIA E-FILE

Mary Peck Schubert
23rd         Clerk Office
       District
Matagorda County, Texas
111 E. Locust, Room 404
Angleton, Texas 77515

          Re:     Cause Number 15-H-0082, Copano NGL Sen/ices LLC v. John
                  Ashcraft, individually and as trustee for the John Ashcraft Family
                  Trust, 2012, in the 23rd Judicial District of Matagorda County, Texas.

Dear Ms. Schubert:

          Enclosed please    find the following   documents   to   be   filed in   the above-referenced
matter:

        o         Award   of Special Commissioners;

        0         Order on Accrued Costs and Possession Bonds


          accordance with Section 21.049 of the Texas Property Code, please issue
          In
notice of the date of entry of the Award of Special Commissioners, including a file
stamped copy of the award, to the parties and their attorneys of record within one
(1) day of this filing. Please issue this notice either today or tomorrow as directed
by Section 21.049. Please do not wait for Copano NGL Sen/ices LLC to deposit the
amount of the Special Commissioners’ Award, or the possession bonds. For your
convenience, a list containing the contact information for the parties and their attorneys
of record is attached to Exhibit A to the Order on Accrued Costs and Possession Bonds.

                   please transmit the enclosed Order on Accrued Costs and
        Additionally,
Possession Bonds to Judge Ben Hardin for his signature.

         have included an additional copy of these documents. Please file the originals
          I




in your customary manner, file stamp the copies and return them to the person
delivering the documents.
Page 2



         Thank you      foryour time and attention to    this matter,   and please   feel free to
contact   me    if you have any questions or concerns.




Very truly yours,

 @%éil»'
Kenneth    E.   McKay
cc:      Daniel W. Shindler
         2232 Ave G
         Bay City, Texas 77414

         John T. McDowell
         Kacy J. Shindler
         McDowell Wells, LLP
         603 Avondale Street
         Houston, Texas 77006
                                                                                                                                         Filed   5/19/2015 10:18:23 AM
                                                                                                                                                       Jamie C. Bludau
                                                                                                                                                          District   Clerk
                                                                                                                                            Matagorda County, Texas
                                                                                                                                             Stephanie Wurtz, Deputy


                                                    NO. 15—H-0082

COPANO NGL SERVICES LLC,                                                                                IN THE DISTRICT             COURT OF
         Plaintiff,


<   E“                                                                                               MATAGORDA COUNTY, TEXAS
JOHN ASHCRAFT, INDIVIDUALLY
                                                                <mo0><moo><moo><moo><mo0><m




AND AS TRUSTEE FOR THE JOHN
ASHCRAFT FAMILY TRUST 2012,
         Defendant.                                                                                            23rd   JUDICIAL DISTRICT
                          OBJECTION TO AWARD OF COMMISSIONERS
          Copano     NGL    Services    LLC,    Plaintiff in this                                condemnation proceeding, objects          to the


award of the special commissioners appointed                                                  to assess the    damages   resulting     from the

condemnation described         in the   award on the following grounds:

          The    special commissioners failed to apply the correct                                      measure of damages     in determining


adequate compensation, which resulted in an award in excess of fair market value of the property

interests taken     and the damages suffered by the remainder.

          WHEREFORE,          Plaintiff respectfully prays that the                                   Court issue a citation for Defendant

John Ashcraft,       in his individual capacity        and   in his capacity as Trustee for the                                    John Ashcraft

Family Trust 2012, and        try this case    based upon the objections stated herein in the same manner

as other civil causes      and that upon    trial   and hearing,                                Plaintiff   may be awarded   all   such relief to

which    it   may show itself justly entitled,      either at                           law or   in equity.




HOU:0O27719/00001:1788656v3
                                                  Respectfully submitted,

                                                  LOCKE LORD LLP


                                                      (§~.%£M'
                                                  Kenneth E. McKay
                                                  State Bar No. 13690835
                                                  A. Antroy Arreola
                                                  State Bar No. 24006769
                                                  Hairy Holmes Thompson
                                                  State Bar No. 24088527
                                                  2800 JPMorgan Chase Tower
                                                  600 Travis Street
                                                  Houston, Texas 77002
                                                  (713) 226-1200 (Telephone)
                                                  (713) 223-3717 (Facsimile)

                                                  ATTORNEYS FOR COPANO NGL
                                                  SERVICES LLC
                                   CERTIFICATE OF SERVICE
         I hereby certify that a true and correct copy of the foregoing document has been served
on the   parties listed below via regular mail, certiﬁed mail, return receipt requested, e-mail, or
facsimile on this 19th day of May, 2015.

John McDowell
McDowell      Wells,   LLP
603 Avondale Street
Houston, Texas 77006

Daniel   W.   Shindler
2232 Ave      G
Bay City, Texas 77414
                                                       @..¢<¢ 5; /U
                                                      Kenneth E.   McKay




                                                _2_


HOU:00277l9/00001:l788656v3
                                                  Op




                                         Jamie C. Bludau
                                           District Clerk
                                      Matagorda County, Texas
                                       1700 7th St., Room 307
                                     Bay City, Texas 77414-5092
                                          (979) 244-7621


  May 27, 2015

  John Ashcraft
  PO Box 1371
  Van Vleck, TX 77482-1371

  Re: Cause Number 15-E-0082, Copano NGL Services LLC v. John Ashcraft:

  Dear : John Ashcraft

  Enclosed please find the following documents:

        •   Award of Special Commissioners




                      a-6N-

(Jami
  Y   C. Bludau, District Clerk

  cc:       Kenneth McKay
            2800 JP Morgan Chase Tower
            600 Travis Street
            Houston, TX 77022
            John T. McDowell
            603 Avondale Street
            Houston, TX 77006

  Enclosures (1)
                                                                                                                                                                 Filed 6/9/2015 4:49:50   PM
                                                                                                                                                                           Jamie C. Bludau
                                                                                                                                                                              Dist‘r|c tC| e rk
                                                                                                                                                                 Matagorda County, Texas
                                                                                                                                                                  Renda Schuelke, Deputy

                                                 NO. 15-H-0082
COPANO NGL SERVICES LLC,                                                                                                        IN   THE DISTRICT COURT OF
         Plaintiﬁ’,



<   5"
                                                           OU>¢0'>OU>¢0'>OU>¢O'><'0'>¢0'><'0'>¢O'><'0'>¢O'><'0'J
                                                                                                                            MATAGORDA COUNTY, TEXAS

JOHN ASHCRAFT, INDIVIDUALLY
AND As TRUSTEE FOR THE JOHN
ASHCRAFT FAMILY TRUST 2012,
         Defendants.                                                                                                                  23"’ JUDICIAL DISTRICT

                      DEFENDANTS’ MOTION FOR ENTRY OF JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:
         COME NOW,         John Ashcraft, Individually and as Trustee                                                                for the   John Ashcraft Family

Trust 2012, Defendants, and ﬁles this Motion for Entry of Judgment, respectfully showing unto

the Court the following:

                                     I.        UNDERLYING FACTS
         Plaintiff    Copano   NGL   Services,   LLC, ﬁled                                                         its   Original Petition on or about     March      4,


2015. Copano allegedly seeks to construct a twenty-three (23) mile pipeline from near Markham,

Texas, to Old Ocean, Texas, to transport natural gas liquids from the Eagle Ford Shale to

purchasers and processors in Sweeny, Brazoria County, Texas.

         On   April 21, 2015, Defendants were awarded one million forty three thousand eight

hundred and    thirty dollars ($1,043,830.00)      by   the Special Commissioners. That                                                              same day, April

21, 2015, Plaintiff ﬁled the    Award of Special Commissioners with the Court pursuant to                                                                    Section

21.049 of the Texas Property Code.

         Plaintiff ﬁled   an objection    to the Special                                       Commissioners’ Award on                         May   19, 2015.
                                  II.         ARGUMENT AND AUTHORITIES
           Plaintiff’ s    Objection     is   untimely; therefore Defendants are entitled to Judgment on the

Special Commissioners’ Award.                        “If    no party   in a   condemnation proceeding ﬁles timely

objections to the ﬁndings of the special commissioners, the judge of the court that has

jurisdiction of the proceeding shall adopt the commissioners’ ﬁndings as the                              judgment of the

court...” Tex. Property         Code     Sec. 21.061

           The deadline      to ﬁle     an objection to a Special Commissioners’ Award               is   “on or before the

ﬁrst   Monday     following the 20th day after the day the commissioners ﬁle their ﬁndings with the

court.” Tex. Property          Code     Sec. 21.018.         The   special commissioner’s     award was ﬁled on April

21, 2015.     Under       section 21.018, the deadline to ﬁle an objection to the               award was on or before

May    18, 2015. Plaintiff did not ﬁle its objection until                  aﬁer May   18, 2015.


           WHEREFORE, PREMISES CONSIDERED,                                   Defendants, John Ashcraft, Individually

and as Trustee for the John Ashcraft Family Trust 2012, respectfully requests                               that the   Court

adopt the commissioners’ ﬁndings as the judgment of the Court, and for such other and further

relief,   both special and general,           at   law or   in equity, as   Defendants   may be entitled to receive.


                                                               Respectfully submitted,

                                                               MCDOWELL WELLS, LLP
                                                               /s/Kacv Shindler
                                                               John T. McDowell
                                                               SBN 13570850
                                                               jtm@houstontrialattorneys.com
                                                               Kacy J. Shindler
                                                                SBN 24088407
                                                               ks@houstontrialattorneys.com
                                                               603 Avondale Street
                                                               Houston, Texas 77006
                                                               Telephone: (713) 655-9595
                                                               Facsimile: (713) 655-7868
PAUL WEBB, P.C.
Vincent L. Marable III
State Bar No. 12961600
221 N. Houston
Wharton, Texas 77488
Telephone: (979) 532-5331
Facsimile: (979) 532-2902



Danny Shindler
SBN: 18266200
dWshind1er@sbcglobal.net
2232 Avenue    G
Bay City,   TX 77414
Telephone: 979-245-4666
Facsimile: 979-244-5342

ATTORNEYS FOR DEFENDANTS
                                  CERTIFICATE OF SERVICE
       I   hereby certify that a true and correct copy of the foregoing was served on   all   counsel of

record in compliance with the Texas Rules of Civil Procedure, this 9th day of June, 2015.

Kenneth E. McKay                                                            Via Email and Facsimile
Locke Lord LLP
2800 JPMorgan Chase Tower, 600 Travis
Houston, TX 77002
kmckay@lockelord.com
Direct Fax: 713-229-2592




                                                      /s/ Kacy   Shindler
                                                      Kacy Shindler
Black v. Shor, 443 S.W.3d 154 (2013)




                     443 S.W.3d 154                                  Affirmed.
                 Court of Appeals of Texas,
                 Corpus Christi–Edinburg.

            Paul BLACK, et al., Appellants,                           West Headnotes (29)
                         v.
         Toby SHOR and Seashore Investments
                                                                      [1]   Alternative Dispute Resolution
            Management Trust, Appellees.
                                                                                 Arbitration favored; public policy
         No. 13–11–00413–CV. | April 18,                                    Alternative Dispute Resolution
    2013. | Rehearing Overruled May 24, 2013.                                    Scope and Standards of Review
                                                                             25T Alternative Dispute Resolution
Synopsis                                                                     25TII Arbitration
Background: Investment firm and affiliated business entities                 25TII(A) Nature and Form of Proceeding
filed motion to confirm arbitration award of $31 million on                  25Tk113 Arbitration favored; public policy
claims for breach of contract and fraud against joint owner                  25T Alternative Dispute Resolution
and manager of various companies and properties in which                     25TII Arbitration
firm and entities had invested. The County Court at Law No.                  25TII(H) Review, Conclusiveness, and
3, Nueces County, John Martinez, J., granted motion. Joint                   Enforcement of Award
                                                                             25Tk366 Appeal or Other Proceedings for
owner appealed.
                                                                             Review
                                                                             25Tk374 Scope and Standards of Review
                                                                             25Tk374(1) In general
Holdings: The Court of Appeals, Benavides, J., held that:                   Arbitration is strongly favored and judicial
                                                                            review of an arbitration award is extraordinarily
[1] owner successfully preserved other grounds for vacatur                  narrow.
that were not included in the timely motion to vacate;
                                                                            1 Cases that cite this headnote
[2] that firm had transferred its partnership interests to another
business entity during pendency of arbitration did not render         [2]   Alternative Dispute Resolution
arbitration panel without authority to issue award to the then                   Appeal or Other Proceedings for Review
existing entities;                                                           25T Alternative Dispute Resolution
                                                                             25TII Arbitration
[3] trial court was under no obligation to prepare findings                  25TII(H) Review, Conclusiveness, and
of fact or conclusions of law for the sake of confirming an                  Enforcement of Award
arbitration award;                                                           25Tk366 Appeal or Other Proceedings for
                                                                             Review
[4] public policy underlying the recognition of a partner's                  25Tk367 In general
ability to terminate a partnership was not so fundamental or                Subjecting arbitration awards to judicial review
compelling as to provide grounds to vacate arbitration award;               adds expense and delay, thereby diminishing the
                                                                            benefits of arbitration as an efficient, economical
[5] any error in awarding firm duplicative tort and contract                system for resolving disputes.
recovery did not demonstrate manifest disregard of the law or
                                                                            Cases that cite this headnote
gross mistake as was necessary to vacate arbitration award;
and
                                                                      [3]   Alternative Dispute Resolution
[6] firm partner was entitled to attorney fee award even                         Presumptions and Burden of Proof
though the firm as a business entity was named party.                       Alternative Dispute Resolution



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
Black v. Shor, 443 S.W.3d 154 (2013)


            Construction and operation in general
                                                                  2 Cases that cite this headnote
        25T Alternative Dispute Resolution
        25TII Arbitration
        25TII(G) Award                                      [6]   Alternative Dispute Resolution
        25Tk337 Presumptions and Burden of Proof                       Scope and Standards of Review
        25Tk338 In general
                                                                  25T Alternative Dispute Resolution
        25T Alternative Dispute Resolution
                                                                  25TII Arbitration
        25TII Arbitration
                                                                  25TII(H) Review, Conclusiveness, and
        25TII(H) Review, Conclusiveness, and
                                                                  Enforcement of Award
        Enforcement of Award
                                                                  25Tk366 Appeal or Other Proceedings for
        25Tk379 Construction and operation in general
                                                                  Review
       An arbitration award is given the same effect
                                                                  25Tk374 Scope and Standards of Review
       as a judgment of last resort and all reasonable            25Tk374(1) In general
       presumptions are indulged in favor of the award            Review of a trial court's judgment confirming an
       and none against it.                                       arbitration award focuses on the integrity of the
                                                                  process, not the propriety of the result.
       1 Cases that cite this headnote
                                                                  1 Cases that cite this headnote
 [4]   Alternative Dispute Resolution
            Scope and Standards of Review                   [7]   Alternative Dispute Resolution
        25T Alternative Dispute Resolution                             Harmless error
        25TII Arbitration
                                                                  25T Alternative Dispute Resolution
        25TII(H) Review, Conclusiveness, and
                                                                  25TII Arbitration
        Enforcement of Award
                                                                  25TII(H) Review, Conclusiveness, and
        25Tk366 Appeal or Other Proceedings for
                                                                  Enforcement of Award
        Review
                                                                  25Tk366 Appeal or Other Proceedings for
        25Tk374 Scope and Standards of Review
                                                                  Review
        25Tk374(1) In general
                                                                  25Tk374 Scope and Standards of Review
       The appellate court reviews a trial court's                25Tk374(8) Harmless error
       decision to vacate or confirm an arbitration               While judicial review to determine whether an
       award de novo, and the appellate court reviews             arbitrator correctly applied the law to the facts is
       the entire record.                                         generally limited, the parties, by their contract,
                                                                  may agree to allow for judicial review of an
       1 Cases that cite this headnote
                                                                  arbitration award for reversible error.

 [5]   Alternative Dispute Resolution                             Cases that cite this headnote
            Scope and Standards of Review
        25T Alternative Dispute Resolution                  [8]   Alternative Dispute Resolution
        25TII Arbitration                                              Presentation and reservation of grounds of
        25TII(H) Review, Conclusiveness, and                      review
        Enforcement of Award
                                                                  25T Alternative Dispute Resolution
        25Tk366 Appeal or Other Proceedings for
                                                                  25TII Arbitration
        Review
                                                                  25TII(H) Review, Conclusiveness, and
        25Tk374 Scope and Standards of Review
                                                                  Enforcement of Award
        25Tk374(1) In general
                                                                  25Tk366 Appeal or Other Proceedings for
       Although the appellate court reviews de novo a
                                                                  Review
       trial court's judgment confirming an arbitration
                                                                  25Tk371 Presentation and reservation of grounds
       award, it gives strong deference to the arbitrator         of review
       with respect to issues properly left to the                Joint owner and manager of companies and
       arbitrator's resolution.                                   properties who filed a timely motion to vacate


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Black v. Shor, 443 S.W.3d 154 (2013)


        $31-million arbitration award within 90-day
        limitations period following issuance of award              2 Cases that cite this headnote
        successfully preserved other grounds for vacatur
        that were not included in the timely motion          [11]   Alternative Dispute Resolution
        to vacate; while the Arbitration Act (TAA)                       Time for proceeding
        provided a clear 90-day limitations period within           25T Alternative Dispute Resolution
        which to file the motion to vacate an arbitration           25TII Arbitration
        award, there was no concomitant requirement for             25TII(H) Review, Conclusiveness, and
        the motion to vacate to include all grounds that            Enforcement of Award
        would be raised for vacatur prior to trial court's          25Tk360 Impeachment or Vacation
        ruling on the motion. V.T.C.A., Civil Practice &            25Tk363 Motion to Set Aside or Vacate
        Remedies Code § 171.088(b).                                 25Tk363(4) Time for proceeding
                                                                    Filing a motion to vacate an arbitration award
        1 Cases that cite this headnote                             after confirmation of the award constitutes
                                                                    waiver.
 [9]    Alternative Dispute Resolution
                                                                    Cases that cite this headnote
             Time for proceeding
        25T Alternative Dispute Resolution
        25TII Arbitration                                    [12]   Alternative Dispute Resolution
        25TII(H) Review, Conclusiveness, and                             Nature and Extent of Authority
        Enforcement of Award                                        25T Alternative Dispute Resolution
        25Tk360 Impeachment or Vacation                             25TII Arbitration
        25Tk363 Motion to Set Aside or Vacate                       25TII(E) Arbitrators
        25Tk363(4) Time for proceeding                              25Tk228 Nature and Extent of Authority
        Based on the plain language of the Arbitration              25Tk229 In general
        Act (TAA), the Legislature intended the 90-day              That investment firm had transferred its
        period in which a party must move to vacate an              partnership interests to another business entity
        award to be a limitations period after which a              during pendency of arbitration proceedings did
        party cannot ask a court to vacate an arbitration           not render arbitration panel without authority
        award. V.T.C.A., Civil Practice & Remedies                  to issue award to the then existing entities, in
        Code § 171.088.                                             action for breach of contract and fraud against
                                                                    joint owner and manager of various companies
        1 Cases that cite this headnote                             and properties in which firm and entities had
                                                                    invested; the arbitration agreement was written
 [10]   Alternative Dispute Resolution                              in manner as to encompass affiliated entities and
             Presentation and reservation of grounds of             both sides to the dispute stipulated that all parties
        review                                                      were properly before the arbitration panel and
        25T Alternative Dispute Resolution                          that all claims would be definitively resolved by
        25TII Arbitration                                           the arbitrators based on the stipulation between
        25TII(H) Review, Conclusiveness, and                        the parties.
        Enforcement of Award
        25Tk366 Appeal or Other Proceedings for                     Cases that cite this headnote
        Review
        25Tk371 Presentation and reservation of grounds      [13]   Alternative Dispute Resolution
        of review
                                                                         Agreement or submission as determinative
        A party seeking to vacate an arbitration award
                                                                    25T Alternative Dispute Resolution
        must present any grounds for doing so to the trial
                                                                    25TII Arbitration
        court, otherwise, those complaints are waived on
                                                                    25TII(E) Arbitrators
        appeal. Rules App.Proc., Rule 33.1.                         25Tk228 Nature and Extent of Authority



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
Black v. Shor, 443 S.W.3d 154 (2013)


        25Tk230 Agreement or submission as                          court or county court without a jury, includes
        determinative                                               the disposition of a case rendered after an
        The authority of arbitrators is derived from the            evidentiary hearing before the trial court upon
        arbitration agreement and is limited to a decision          conflicting evidence. Vernon's Ann.Texas Rules
        of the matters submitted therein either expressly           Civ.Proc., Rule 296.
        or by necessary implication.
                                                                    Cases that cite this headnote
        Cases that cite this headnote

                                                             [16]   Trial
 [14]   Alternative Dispute Resolution                                   Duty to Make in General
             Proceedings                                            388 Trial
        25T Alternative Dispute Resolution                          388X Trial by Court
        25TII Arbitration                                           388X(B) Findings of Fact and Conclusions of
        25TII(H) Review, Conclusiveness, and                        Law
        Enforcement of Award                                        388k388 Duty to Make in General
        25Tk353 Confirmation or Acceptance by Court                 388k388(1) In general
        25Tk357 Proceedings                                         When a judgment is rendered as a matter of law,
        Trial court was under no obligation to prepare              findings and conclusions have no purpose and
        findings of fact or conclusions of law for the              should not be requested or considered on appeal.
        sake of confirming an arbitration award in
        proceedings in which no evidence was adduced                Cases that cite this headnote
        by the parties at the hearing on the motion to
        confirm the arbitration award; trial court did not   [17]   Trial
        make determinations of fact based on conflicting                 Duty to Make in General
        evidence, as that function had been subsumed
                                                                    388 Trial
        in the arbitration process by the arbitrators.
                                                                    388X Trial by Court
        Vernon's Ann.Texas Rules Civ.Proc., Rules 296,              388X(B) Findings of Fact and Conclusions of
        297.                                                        Law
                                                                    388k388 Duty to Make in General
        Cases that cite this headnote
                                                                    388k388(1) In general
                                                                    Even when the trial court receives evidence,
 [15]   Trial                                                       findings and conclusions are only appropriate
             Necessity for request                                  if the trial court is called upon to determine
        Trial                                                       questions of fact upon conflicting evidence.
             Form and requisites of request                         Vernon's Ann.Texas Rules Civ.Proc., Rules 296,
                                                                    297.
        388 Trial
        388X Trial by Court
                                                                    Cases that cite this headnote
        388X(B) Findings of Fact and Conclusions of
        Law
        388k392 Requests for Findings                        [18]   Trial
        388k392(1) Necessity for request                                 Necessity for request
        388 Trial
                                                                    Trial
        388X Trial by Court
                                                                         Form and requisites of request
        388X(B) Findings of Fact and Conclusions of
        Law                                                         388 Trial
        388k392 Requests for Findings                               388X Trial by Court
        388k392(3) Form and requisites of request                   388X(B) Findings of Fact and Conclusions of
        The term “tried,” as used in rule requiring                 Law
                                                                    388k392 Requests for Findings
        trial courts, when properly requested, to prepare
                                                                    388k392(1) Necessity for request
        findings of fact in cases “tried” in the district


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      4
Black v. Shor, 443 S.W.3d 154 (2013)


        388 Trial                                                     To support vacatur of an arbitration award, a
        388X Trial by Court                                           public policy concern must be well defined
        388X(B) Findings of Fact and Conclusions of                   and dominant and not derived from general
        Law                                                           considerations of supposed public interests.
        388k392 Requests for Findings
        388k392(3) Form and requisites of request                     Cases that cite this headnote
        Rules requiring trial courts, when properly
        requested, to prepare findings of fact in cases
                                                               [21]   Alternative Dispute Resolution
        tried in the district court or county court without
                                                                           Mistake or Error
        a jury do not impose any duty on the trial
        court to file findings and conclusions when there             Alternative Dispute Resolution
        has been no trial; thus, when there has been                       Error of judgment or mistake of law
        no determination of questions of fact based on                25T Alternative Dispute Resolution
        conflicting evidence, there is no error in the trial          25TII Arbitration
        court's failure to file findings and conclusions.             25TII(G) Award
        Vernon's Ann.Texas Rules Civ.Proc., Rules 296,                25Tk327 Mistake or Error
        297.                                                          25Tk328 In general
                                                                      25T Alternative Dispute Resolution
        Cases that cite this headnote                                 25TII Arbitration
                                                                      25TII(G) Award
                                                                      25Tk327 Mistake or Error
 [19]   Alternative Dispute Resolution                                25Tk329 Error of judgment or mistake of law
             Conformity to public policy                              Any error in awarding investment firm
        25T Alternative Dispute Resolution                            duplicative tort and contract recovery did not
        25TII Arbitration                                             demonstrate manifest disregard of the law or
        25TII(G) Award                                                gross mistake as was necessary to vacate
        25Tk312 Conformity to public policy                           arbitration award; the arbitration panel gave
        Public policy underlying the recognition of a                 serious consideration to the parties' contentions,
        partner's ability to terminate a partnership was              evidence, and arguments, and nothing in the
        not so fundamental or compelling as to provide                record suggested the panel made its decision
        grounds to vacate arbitration award, in dispute               in bad faith or that it failed to exercise honest
        between investment firm and joint owner and                   judgment.
        manager of various companies and properties
        in which firm and entities had invested; joint                1 Cases that cite this headnote
        owner's arguments that his companies and
        properties were entitled to termination of the
                                                               [22]   Alternative Dispute Resolution
        partnership were disputed by firm and the issue
                                                                           Error of judgment or mistake of law
        was submitted to the arbitrators, and, even if the
                                                                      25T Alternative Dispute Resolution
        arbitrators were wrong, a mere error, if any, did
                                                                      25TII Arbitration
        not necessarily implicate a violation of public
                                                                      25TII(G) Award
        policy.                                                       25Tk327 Mistake or Error
                                                                      25Tk329 Error of judgment or mistake of law
        Cases that cite this headnote
                                                                      Manifest disregard of the law of the sort
                                                                      necessary to vacate an arbitration award is a very
 [20]   Alternative Dispute Resolution                                narrow standard of review; it is more than error
             Conformity to public policy                              or misunderstanding of the law, but is instead an
        25T Alternative Dispute Resolution                            error that must be obvious and capable of being
        25TII Arbitration                                             readily and instantly perceived by the average
        25TII(G) Award                                                person qualified to serve as an arbitrator.
        25Tk312 Conformity to public policy




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         5
Black v. Shor, 443 S.W.3d 154 (2013)


                                                                    honest judgment and results in a decision that is
        Cases that cite this headnote                               arbitrary and capricious.

                                                                    1 Cases that cite this headnote
 [23]   Alternative Dispute Resolution
             Error of judgment or mistake of law
        25T Alternative Dispute Resolution                   [26]   Alternative Dispute Resolution
        25TII Arbitration                                                Consistency and reasonableness; lack of
        25TII(G) Award                                              evidence
        25Tk327 Mistake or Error                                    25T Alternative Dispute Resolution
        25Tk329 Error of judgment or mistake of law                 25TII Arbitration
        Manifest disregard of the law of the sort                   25TII(G) Award
        necessary to vacate an arbitration award is                 25Tk324 Consistency and reasonableness; lack
        established upon showing that the arbitrator                of evidence
        recognized a clearly governing principle and                A judgment rendered after honest consideration
        ignored it; in other words, the issue is not                given to conflicting claims, no matter how
        whether the arbitrator correctly interpreted the            erroneous, is not arbitrary and capricious for
        law, but whether the arbitrator, knowing the law            purposes of challenging arbitration award.
        and recognizing that the law required a particular
        result, simply disregarded the law.                         Cases that cite this headnote

        Cases that cite this headnote
                                                             [27]   Alternative Dispute Resolution
                                                                         Mistake or Error
 [24]   Alternative Dispute Resolution                              Alternative Dispute Resolution
             Presumptions                                                Error of judgment or mistake of law
        25T Alternative Dispute Resolution                          25T Alternative Dispute Resolution
        25TII Arbitration                                           25TII Arbitration
        25TII(H) Review, Conclusiveness, and                        25TII(G) Award
        Enforcement of Award                                        25Tk327 Mistake or Error
        25Tk366 Appeal or Other Proceedings for                     25Tk328 In general
        Review                                                      25T Alternative Dispute Resolution
        25Tk374 Scope and Standards of Review                       25TII Arbitration
        25Tk374(5) Presumptions                                     25TII(G) Award
        It is appellants' burden to demonstrate the                 25Tk327 Mistake or Error
        arbitrator manifestly disregarded the law.                  25Tk329 Error of judgment or mistake of law
                                                                    The doctrines of manifest disregard of the law
        Cases that cite this headnote                               and gross mistake do not extend to mere mistakes
                                                                    of fact or law; judicial review of an arbitration
 [25]   Alternative Dispute Resolution                              award is so limited that even a mistake of
             Mistake or Error                                       fact or law by the arbitrator in the application
        25T Alternative Dispute Resolution                          of substantive law is not a proper ground for
        25TII Arbitration                                           vacating an award.
        25TII(G) Award
        25Tk327 Mistake or Error
                                                                    1 Cases that cite this headnote
        25Tk328 In general
        “Gross mistake” is conceptually analogous to         [28]   Alternative Dispute Resolution
        manifest disregard of the law, for purposes of                   Mistake or Error
        challenging an arbitration award; it is a mistake
                                                                    25T Alternative Dispute Resolution
        that implies bad faith or a failure to exercise             25TII Arbitration
                                                                    25TII(G) Award



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Black v. Shor, 443 S.W.3d 154 (2013)


        25Tk327 Mistake or Error                              Appellants, Paul Black, PBF Investments, Ltd., BNP
        25Tk328 In general                                    Holdings, Ltd., BNP Commercial Properties, Ltd., Pagenergy
        The trial court should not overturn an arbitration    Company, LLC, TSE Equities I LLC, TSE Equities
        award rendered after honest consideration given       Company, Ltd., BNP Management LLC, and 500 Water
        to claims and defenses presented to it, no matter     Street Property LLC, appeal from the judgment of the trial
        how erroneous.                                        court affirming an arbitration award rendered against them
                                                              and in favor of Seashore Investments Management Trust
        Cases that cite this headnote
                                                              (“Seashore”) through its trustee, Toby Shor (collectively
                                                              “appellees”). We affirm. 1
 [29]   Alternative Dispute Resolution
             Costs                                            1      By separate opinion issued this same date, the Court
        25T Alternative Dispute Resolution                           vacated in part, and reversed and remanded in part, three
        25TII Arbitration                                            post-judgment turnover orders issued on the judgment
        25TII(F) Arbitration Proceedings                             subject to appeal herein. See Black v. Shor., Nos. 13–11–
        25Tk269 Costs                                                00570–CV & 13–11–00715–CV, 2013 Tex.App. LEXIS
        Individual investment firm partner was entitled              –––– (Tex.App.-Corpus Christi Apr. 18, 2013, no pet.
        to attorney fee award even though the firm as a              h.).
        business entity was named party, in arbitration
        dispute between firm and companies in which
        firm had invested; arbitration agreement was                               I. BACKGROUND
        written in manner as to encompass affiliated
                                                              Seashore was created in 2001 for the purpose of investing
        parties and entities and both sides to the dispute
                                                              in various oil and gas and commercial property companies
        stipulated that all parties were properly before
                                                              owned and managed by Paul Black. Kenton McDonald
        the arbitration panel, and, by statute, parties
                                                              was the original trustee for Seashore. Seashore and Black
        could seek recovery for attorney fees in claims
                                                              entered into several agreements pertaining to the terms of the
        for breach of an oral or written contract.
                                                              investment, including an Agreement Regarding Termination
        V.T.C.A., Bus. & C. § 27.01.
                                                              of *159 Joint Ownership, a Restructure Agreement, and an
        Cases that cite this headnote                         Indemnity Agreement. Through the trust, Shor, the grantor for
                                                              Seashore, made substantial investments in the Black group of
                                                              companies. In 2007, Shor succeeded McDonald as trustee of
                                                              Seashore and began investigating the financial relationships
Attorneys and Law Firms                                       of the companies.

*158 Kevin W. Grillo, Pena & Grillo, PLLC, Corpus Christi,    After concluding that appellants had committed misfeasance
Alan B. Daughtry, Doyle Raizner LLP, Houston, Ben C.          with regard to Seashore's investments, Shor brought suit
Broocks, Austin, for Appellants.                              against appellants for injunctive relief and pre-arbitration
                                                              discovery in Nueces County Court at Law Number One.
Jean C. Frizzell, John S. Black, Billy Berryhill, Reynolds,   Shor alleged that the agreements between the parties provided
Frizzell, Black, Houston, Ron Barroso, Corpus Christi,        for arbitration and that the assets and records of the jointly
Richard D. Daly, Houston, Robin C. Gibbs, Jeff Cotner,        owned companies had to be preserved to protect the right
Houston, for Appellees.                                       to a meaningful arbitration. The trial court appointed a
                                                              special master to assist in the pre-arbitration process. In
Before Justices GARZA, BENAVIDES and PERKES.
                                                              response to the allegations against them, appellants sought
                                                              sanctions against Shor, sent Seashore a “termination notice”
                                                              seeking to dissolve their relationship with it, and participated
                        OPINION                               in a mediation led by the court-appointed special master.
                                                              Subsequently, appellants filed a separate lawsuit against
Opinion by Justice BENAVIDES.
                                                              Seashore in County Court at Law Number Three for an
                                                              alleged breach of the Agreement Regarding Termination.


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Black v. Shor, 443 S.W.3d 154 (2013)


                                                                    the Arbitration hearing, he failed to do so. Mr. Black's
Under the terms of the arbitration agreements between the           claims of implicit permission from Seashore and/or its
parties, these matters were ultimately submitted to arbitration     trustee to engage in such self-dealings were contradicted
before a panel of three arbitrators in accordance with the          by the evidence presented and belied by the written
Commercial Arbitration Rules of the American Arbitration            agreements between the Parties. The preponderance of the
Association. After months of pre-arbitration discovery and          credible evidence established that Mr. Black, individually,
motions practice, the arbitration hearing was held from June        and through PBF and the entities he controlled, violated
2, 2010 to June 15, 2010. In its detailed, ten-page award,          fiduciary and other duties owed to Seashore and breached
the arbitration panel awarded Seashore “substantial relief”         the agreements with Seashore. [Appellants], on the other
and denied the Black parties' claims “in their entirety.”           hand, failed to establish entitlement to any of the relief they
Specifically, the panel concluded that Black “intentionally         sought.
and over a lengthy period of years, extracted millions of
dollars from the jointly-owned entities for his own personal        For these reasons, as discussed in greater detail below, we
use and benefit.” The panel awarded Seashore approximately          award [appellees] substantial relief on their claims asserted
$31,000,000 for its claims for breach of contract, breach of        herein and deny [appellants'] claims in their entirety.
fiduciary duty, and fraud. The award states, in part:
                                                                  The award further details, inter alia, that appellants failed
  In 2001, Seashore invested in a group of companies run          to make payments to appellees under promissory notes
  by Paul Black and PBF Investments, Limited (“PBF”)              and guarantees; breached fiduciary duties to appellees
  consisting mainly of limited partnerships in the real           “by wrongly taking and permitting or effecting excessive
  estate and oil and gas businesses, with Paul Black              distributions from the jointly-owned entities [and] making
  directly or indirectly holding majority interests in and        improper transfers and misusing company funds;” “engaged
  controlling the general partners, and Seashore holding          in fraud and fraudulently induced Seashore to make an initial
  minority and limited partnership interests.... Paul Black,      and subsequent investments in the jointly-owned entities”
  BNP Management, LC, Pagenergy Company, LLC and                  through promissory notes and other agreements; and “hid
  other Paul Black-owned or controlled entities stood in a        or attempted to hide transfers to benefit Mr. Black.” The
  fiduciary relationship to Seashore.                             arbitration panel also concluded that the “type of misconduct
                                                                  proven in this case is precisely the sort of misbehavior
  The evidence presented at the Arbitration Hearing clearly       Texas law seeks to deter by permitting awards of exemplary
  and convincingly established that Paul Black treated the        damages in appropriate cases” and awarded $5 million in
  entities jointly-owned with Seashore as his own without         punitive damages based on “a persisted pattern of willful,
  regard for Seashore's rights and interests. In particular,      intentional, malicious conduct and grossly negligent conduct
  the evidence established that Paul Black, intentionally and     on the part of Mr. Black toward Seashore over an extended
  over a lengthy period of years, extracted millions of dollars   period of time,” for which the panel concluded that Mr. Black
  from the jointly-owned entities for his own personal use        was “personally liable.”
  and benefit. Paul Black transferred substantial sums of
  money to companies wholly owned by himself. He used             In County Court at Law Number One, Seashore moved to
  company credit cards of the jointly-owned entities to pay       confirm the arbitration award, whereas appellants moved to
  personal expenses, and instructed company employees to          vacate the award in County Court at Law Number Three.
  transfer funds from the business as necessary to prevent        These cases were ultimately consolidated. The arbitration
  his personal checking account to be overdrawn. He made          award was affirmed by judgment rendered by County Court
  other improper transfers. He continued to make transfers        at Law Number Three on April 6, 2011. This appeal ensued.
  for his own benefit even after some of his improper
  transfers and expenditures were discovered and he had           Appellants raise six issues on appeal: (1) the judgment and
  signed a written agreement expressly prohibiting such           arbitration award should be vacated and set aside because
  transfers in the future. Mr. Black continued *160 to            the award is made to Seashore, which is not a legal entity,
  make such transfers even when the entities lacked funds         and the time for correcting the award has passed; (2) the
  to pay their own creditors and obligations. As a fiduciary,     judgment should be reversed because after modifying the
  Mr. Black had the burden to establish the fairness of           award and the judgment, the trial court failed to issue findings
  all such transactions; based on the evidence presented at       of fact and conclusions of law to find a clerical error and


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Black v. Shor, 443 S.W.3d 154 (2013)


that judge is no longer on the bench, precluding supplemental                included in the appellate record. Guajardo v. Conwell,
findings now; (3) the award on the “so-called” tort claims,                  46 S.W.3d 862, 864 (Tex.2001); In re Guardianship
which are related to the partnership interests, should be                    of Winn, 372 S.W.3d 291, 297 (Tex.App.-Dallas 2012,
reversed and rendered because Seashore had transferred its                   no pet.); Paselk v. Rabun, 293 S.W.3d 600, 612 n. 12
                                                                             (Tex.App.-Texarkana 2009, pet. denied); WorldPeace v.
partnership interest to the Toby Shor 2004 Grantor Retained
                                                                             Comm'n for Lawyer Discipline, 183 S.W.3d 451, 465 n.
Annuity Trust (“Toby Shor 2004 GRAT”), which was not a
                                                                             23 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).
party to the arbitration; (4) the judgment and award should
                                                                             After due consideration of the foregoing law and the
be set aside and remanded to a different arbitration panel
                                                                             length of time that this appeal has been pending, we allow
because the panel failed to give effect to the termination of                the filing of Black's post-submission brief, but limit our
the partnership, and the allocation of liabilities and offsets               consideration of that brief to those issues previously
in a termination requires a new arbitration proceeding; (5)                  raised in the original briefs and the documents properly
the judgment and award should be reformed to eliminate                       presented in the appellate record. Thus, appellees' motion
duplicative tort and contract recovery, including amounts that               to strike is granted in part, and denied in part. The motion
were awarded for appellants' breach of the promissory notes                  is GRANTED insofar as our consideration of the post-
underlying *161 the transactions between appellants and                      submission brief is circumscribed as described herein
appellees, or alternatively, reject any tort recovery outright               and DENIED as to all other relief sought.
for appellants' failure to pay the promissory notes; and (6)
the award of attorney's fees to Shor should be reversed and
                                                                                     II. STANDARD OF REVIEW
rendered because she was not a prevailing party and there is
no other basis for awarding her fees. 2                                [1] [2] [3] [4] [5] [6] Arbitration is strongly favored
                                                                      by Texas law, and judicial review of an arbitration award
2      Black filed a post-submission brief in this case on March      is extraordinarily narrow. See E. Tex. Salt Water Disposal
       19, 2013, almost six weeks after oral argument in this         Co., Inc. v. Werline, 307 S.W.3d 267, 271 (Tex.2010) (citing
       cause. Appellees have filed a motion to strike the post-       Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 898
       submission brief, or, in the alternative only, grant them      (Tex.1995); CVN Group, Inc. v. Delgado, 95 S.W.3d 234,
       leave to file a responsive brief. Black filed a response to    238 (Tex.2002)); see also In re Guardianship of Cantu
       the motion to strike his post-submission brief. Appellees      de Villarreal, 330 S.W.3d 11, 17 (Tex.App.-Corpus Christi
       contend that the post-submission brief should be struck        2010, no pet.). “Subjecting arbitration awards to judicial
       because: Black did not seek leave of Court to file the         review adds expense and delay, thereby diminishing the
       brief; it is a “blatant attempt to re-argue the entire
                                                                      benefits of arbitration as an efficient, economical system for
       case;” it is untimely; it includes materials outside the
                                                                      resolving disputes.” CVN Group, Inc., 95 S.W.3d at 238. An
       appellate record; and it raises arguments and cites
                                                                      arbitration award is given the same effect as a judgment of last
       authorities that were not contained in appellants' original
                                                                      resort and all reasonable presumptions are indulged in favor
       briefing. We may permit a party to amend or supplement
       a brief “whenever justice requires.” TEX.R.APP. P.             of the award and none against it. Id. Accordingly, we review a
       38.7; see also Standard Fruit & Vegetable Co., Inc.            trial court's decision to vacate or confirm an arbitration award
       v. Johnson, 985 S.W.2d 62, 65 (Tex.1998) (appellate            de novo, and we review the entire record. Xtria L.L.C. v. Int'l
       court has discretion whether to allow filing of amended        Ins. Alliance Inc., 286 S.W.3d 583, 591 (Tex.App.-Texarkana
       or supplemental brief in interest of justice). However,        2009, pet. denied); In re Guardianship of Cantu de Villarreal,
       new or additional issues raised in a reply brief or post-      330 S.W.3d at 17; see Centex/Vestal v. Friendship W. Baptist
       submission brief are untimely and will not be considered       Church, 314 S.W.3d 677, 683 (Tex.App.-Dallas 2010, pet.
       absent express permission from the appellate court             denied); *162 GJR Mgmt. Holdings, L.P. v. Jack Raus,
       allowing the new or additional issues. See Garrett v.          Ltd., 126 S.W.3d 257, 262 (Tex.App.-San Antonio 2003, pet.
       State, 220 S.W.3d 926, 928–29 (Tex.Crim.App.2007);
                                                                      denied). Although we review de novo a trial court's judgment
       Collin Cnty. v. Hixon Family P'ship, Ltd., 365 S.W.3d
                                                                      confirming an arbitration award, we give “strong deference
       860, 877 (Tex.App.-Dallas 2012, pet. denied); Rogers v.
                                                                      to the arbitrator with respect to issues properly left to the
       City of Fort Worth, 89 S.W.3d 265, 284 (Tex.App.-Fort
       Worth 2002, no pet.); Haynes v. McIntosh, 776 S.W.2d
                                                                      arbitrator's resolution.” Xtria L.L.C., 286 S.W.3d at 591; see
       784, 788 (Tex.App.-Corpus Christi 1989, writ denied).          Centex/Vestal, 314 S.W.3d at 683. Our review focuses on the
       Moreover, we do not consider attachments to briefs that        integrity of the process, not the propriety of the result. Ancor
       were not part of the trial court record and are not formally   Holdings, LLC v. Peterson, Goldman & Villani, Inc., 294



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Black v. Shor, 443 S.W.3d 154 (2013)


S.W.3d 818, 826 (Tex.App.-Dallas 2009, no pet.); Women's            following statutory grounds for which a trial court “shall”
Reg'l Healthcare, P.A. v. FemPartners of N. Tex., Inc., 175         vacate an arbitration award:
S.W.3d 365, 367–68 (Tex.App.-Houston [1st Dist.] 2005, no
pet.).                                                                (1) the award was obtained by corruption, fraud, or other
                                                                         undue means;
 [7] While judicial review to determine whether an arbitrator
                                                                      (2) the rights of the party were prejudiced by:
correctly applied the law to the facts is generally limited under
the Texas Arbitration Act, the parties, by their contract, may           (A) evident partiality by an arbitrator appointed as a
agree to allow for judicial review of an arbitration award for             neutral arbitrator;
reversible error. See Nafta Traders, Inc. v. Quinn, 339 S.W.3d
84, 97 (Tex.2011). In this case, the parties' agreements do              (B) corruption in an arbitrator; or
not contain any provisions allowing for an expanded judicial
                                                                         (C) misconduct or willful misbehavior of an arbitrator;
review of the arbitrator's decision, so our review is limited to
determining whether the matters the arbitrator decided were           (3) the arbitrator:
within the scope of the parties' agreements to arbitrate. See id.
                                                                         (A) exceeded his powers;

                                                                         (B) refused to postpone the hearing after a showing of
           III. TEXAS ARBITRATION ACT                                      sufficient cause for the postponement;
          OR FEDERAL ARBITRATION ACT
                                                                         *163 (C) refused to hear evidence material to the
In the arbitration clauses that engendered these proceedings,             controversy;
the parties did not specify whether the Federal Arbitration
Act (“FAA”) or the Texas Arbitration Act (“TAA”) applies.                (D) conducted the hearing, contrary to sections
See 9 U.S.C. §§ 1–16 (West 2009) (FAA); TEX. CIV.                          171.044–.047 of the civil practice and remedies code,
PRAC. & REM.CODE ANN. §§ 171.001–.098 (West 2011)                          in a manner that substantially prejudiced the rights of
(TAA). Although similar, the two arbitration schemes are not               a party; or
identical with regard to the review of arbitration awards. See
Ewing v. Act Catastrophe–Tex. L.C., 375 S.W.3d 545, 549               (4) there was no agreement to arbitrate, the issue was not
(Tex.App.-Houston [14th Dist.] 2012, pet. denied). Compare               adversely determined in a proceeding under [statutes to
9 U.S.C. §§ 10, 11, and Hall Street Assocs., L.L.C. v. Mattel,           compel arbitrations], and the party did not participate in
Inc., 552 U.S. 576, 578, 128 S.Ct. 1396, 170 L.Ed.2d 254                 the arbitration hearing without raising the objection.
(2008) (holding that grounds stated in the FAA for vacating
                                                                    See TEX. CIV. PRAC. & REM.CODE ANN. § 171.088(a)
or modifying an arbitration award are exclusive), with TEX.
                                                                    (West 2011).
CIV. PRAC. & REM.CODE ANN. §§ 171.088, 171.091, and
E. Tex. Salt Water Disposal Co., Inc., 307 S.W.3d at 282 n.
7 (noting that court of appeals held that the arbitration award
could be set aside under common law for fraud, misconduct,                     IV. PRESERVATION OF ERROR
or gross mistake, but “express[ing] no opinion on this issue”),
and Callahan & Assocs. v. Orangefield Indep. Sch. Dist., 92          [8] We first address appellees' contention that “none of the
S.W.3d 841, 844 (Tex.2002) (“assuming without deciding”             issues on appeal were adequately preserved.” According to
that a party could attack an arbitration award on the common        appellees, appellants failed to timely file a motion to vacate
law ground of gross mistake, but concluding that the failure        the arbitration award on any of the grounds raised in this
to award any damages did not constitute gross mistake).             appeal. Appellees contend section 171.088(b) of the Texas
                                                                    Civil Practice and Remedies Code required appellants to file
On appeal, because the parties have not taken a position on         a motion to vacate within 90 days of receiving the award. See
this issue, but have instead variously referred to different        id. § 171.088(b) (West 2011). Given that appellants received
sections of the TAA, we will apply the TAA to this case.            notice of the award on August 18, 2010, appellants timely
Under the Texas arbitration scheme, section 171.088(a) of           filed such a motion on November 16, 2010; however, that
the Texas Civil Practice and Remedies Code provides the             motion identified only one ground for vacating the award:



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Black v. Shor, 443 S.W.3d 154 (2013)


that the panel exceeded its authority by deciding an issue        judgment. We conclude that appellants did not fail to preserve
regarding a subordination agreement involving entities who        the issues in this appeal by failing to raise them within the
were not parties to the arbitration agreements. Appellants        ninety-day period for filing a motion to vacate. See Sydow,
did not raise other rationales for vacatur of the award until     218 S.W.3d at 171. Accordingly, we proceed to address the
after 90 days had passed when, on November 24, 2010, they         merits of the appeal.
filed their motion for a take-nothing judgment, and on May
5, 2011, when they filed a motion for new trial. Appellees
essentially contend that appellants were required to expressly
                                                                                          V. PARTIES
raise all grounds for vacatur within the 90–day period allotted
for filing a motion to vacate.                                     [12] By their first and third issues, appellants attack the
                                                                  arbitration award on grounds that it was rendered in favor of
 [9] The TAA provides, “[o]n application of a party, the court    entities or parties who were not properly before the arbitration
shall vacate an award” where certain specified conditions are     panel. Appellants' first issue contends that the judgment and
met. Id. § 171.088(a)(1). The party must make its application     arbitration award should be vacated and set aside because the
under subsection (a)(1) “not later than the 90th day after the    award is made to Seashore, which is not a legal entity, and
date the grounds for the application are known or should          the time for correcting the award has passed. The third issue
have been known.” Id. § 171.088(b). The plain language            asserts that the award on the “so-called” tort claims, which
of section 171.088 shows that “the legislature intended the       are related to the partnership interests, should be reversed
90–day period ... to be a limitations period after which a        and rendered because Seashore had transferred its partnership
party cannot ask a court to vacate an arbitration award.” New     interest to the Toby Shor 2004 GRAT, which was not a party
Med. Horizons II, Ltd. v. Jacobson, 317 S.W.3d 421, 428           to the arbitration. Appellants' arguments under these issues
(Tex.App.-Houston [1st Dist.] 2010, no pet.). However, while      focus on jurisdiction and standing.
the statute provides a clear limitations period within which to
file the motion to vacate, the statute does not concomitantly     Although appellants do not expressly complain that the
require the motion to vacate to include all grounds that will     arbitrators “exceeded their powers” in determining that
be raised for vacatur. In this regard, we note that the TAA       Seashore or the Toby Shor 2004 GRAT had justiciable
contains no specific form requirements for the application        interests, the underlying basis for their argument that the
to vacate. See TEX. CIV. PRAC. & REM.CODE ANN. §                  trial court had no jurisdiction over these entities is the
171.088; Sydow v. Verner, Liipfert, Bernhard, McPherson &         contention that the arbitration panel exceeded its powers.
Hand, 218 S.W.3d 162, 172 (Tex.App.-Houston [14th Dist.]          Accordingly, we interpret appellants' real complaint to be that
2007, no pet.). There appear to be no policy or efficiency        the arbitration panel exceeded its powers in determining that
reasons to require a separate, formal application, so long as     it had jurisdiction over these parties or that they had standing
the party informs the court and the opposing party of the         to pursue claims against appellants.
desire to have the award vacated. Sydow, 218 S.W.3d at 172.
                                                                   [13] The Texas Supreme Court has stated that “the authority
 [10]     [11] It is abundantly clear that a party seeking to     of arbitrators is derived from the arbitration agreement and
vacate an arbitration award must present any grounds for          is limited to a decision of the matters submitted therein
doing so to the trial court, otherwise, those complaints are      either expressly or by necessary implication.” Gulf Oil Corp.
waived on appeal. See TEX.R.APP. P. 33.1; Ewing, 375              v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 408 (1959).
S.W.3d at 549; Kline v. O'Quinn, 874 S.W.2d 776, 790–             Therefore, we turn our attention to the arbitration agreements
91 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (op.         at issue.
on reh'g). It is also clear that filing a motion to vacate
after confirmation *164 of the award constitutes waiver.          The “Agreement Regarding Termination of Joint
See, e.g., GJR Mgmt. Holdings, L.P., 126 S.W.3d at 260;           Ownership” (“Agreement”) refers to the parties thereto as
Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d                including, inter alia, “Seashore Investment Management
256, 269 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).        Trust, Kenton E. McDonald, trustee (‘Seashore’),” and states
However, appellees cite no authority for the proposition that     that “the undersigned” agree to set forth agreements for the
the trial court may not consider grounds for vacatur that are     provisions for the termination of their joint ownership of
raised following a timely filed motion to vacate and before       the businesses. The Agreement defines “the undersigned” as,



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Black v. Shor, 443 S.W.3d 154 (2013)


inter alia, “Seashore, Toby Shor[,] and entities controlled by                 not include formal findings of fact and
Seashore or Toby Shor [which] are sometimes collectively                       conclusions of law.
referred to as the ‘Seashore Group.’ ” The Agreement
includes a dispute resolution provision as follows:                The caption, or style, includes “Toby Shor and Seashore
                                                                   Investment Management Trust” who are identified as
  Dispute Resolution. If a dispute (“Dispute”) arises between      respondents, counter-claimants, and third-party claimants.
  the parties hereto regarding the meaning of this Agreement,
  or an alleged breach thereof, the parties agree to resolve the   The arbitration award defines the parties in relevant part as
  Dispute through the mediation and arbitration procedures         follows:
  described below in lieu of litigation.
                                                                               The term “Respondents” is used herein
  ....                                                                         to refer to Toby Shor, individually, and
                                                                               Seashore Investments Management
  Arbitration. If the parties are not successful in resolving                  Trust (“Seashore”). Seashore is a
  the dispute through [alternative dispute resolution], then                   grantor trust created in September
  the parties agree that the Dispute shall be settled by                       2000. Initially, Ms. Shor was the
  arbitration in accordance with the Commercial Arbitration                    grantor and beneficiary. Her then
  Rules of the American Arbitration Association, and *165                      husband, Kenton McDonald, served as
  judgment upon the award rendered by the arbitrator(s)                        trustee. Following Ms. Shor's divorce
  may be entered in any court having jurisdiction. The costs                   from Mr. McDonald in 2007, Ms. Shor
  of the arbitration shall be allocated as determined by the                   became the trustee also.
  arbitrator.

                                                                   In the instant case, appellants' arguments under their first
A separate agreement between the parties, the “Restructure
                                                                   issue focus on the fact that the arbitration award issued
Agreement,” defines the parties as including “Kenton E.
                                                                   by the arbitration panel expressly awarded damages to
McDonald, Trustee of Seashore Investment Management
                                                                   “Seashore Investments Management Trust”; however, the
Trust (‘Seashore’).” This Restructure Agreement also
                                                                   final judgment, which expressly incorporated the arbitration
provides a dispute resolution procedure including an
                                                                   award verbatim and by attachment, awarded damages to
arbitration provision that is substantially identical to the one
                                                                   “Seashore, through Toby Shor as Trustee.” In their third
in the Agreement.
                                                                   issue, appellants contend that the arbitration panel lacked
                                                                   jurisdiction to award damages to Seashore on various
At arbitration, both sides to this dispute stipulated that all
                                                                   partnership-related claims because Seashore had previously
parties were properly before the arbitration panel and all
                                                                   transferred its partnership interests to the Toby Shor 2004
claims would be definitively resolved by the arbitrators. The
                                                                   GRAT.
stipulation entered by the parties provides as follows:

             The parties to this arbitration hereby                The arbitration clauses in the Agreement and Restructure
             stipulate to the arbitrability of, and                Agreement are broad and encompass disputes regarding the
             submit to arbitration, all claims raised              meaning of the agreements or any alleged breaches thereof.
             in the pleadings to date of all parties               The party definitions in these agreements are also quite
             listed in the caption above. All parties              broad. Under a broad arbitration clause, “a dispute between
             in such caption agree and stipulate                   the parties to the contract concerning the ownership of a
             that they and all other such parties                  claim arising from the contract is just as arbitrable as a
             are properly before the Arbitration                   dispute concerning the merits of the claim itself.” Island
             Panel, and that the Panel has power,                  on Lake Travis, Ltd. v. Hayman Co. Gen. Contractors,
             authority, and jurisdiction to issue an               834 S.W.2d 529, 532 (Tex.App.-Austin 1992, writ granted,
             award binding as to all parties. They                 judgm't vacated w.r.m.); see Hisaw & Assocs. Gen. Contrs.,
             agree further that a reasoned award is                Inc. v. Cornerstone Concrete Sys., 115 S.W.3d 16, 19–20
             sufficient, and that such award need                  (Tex.App.-Fort Worth 2003, pet. denied) (“We hold that the
                                                                   arbitration clause gave the arbitration panel the power to make
                                                                   the determination as to whether Cornerstone, as opposed


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           12
Black v. Shor, 443 S.W.3d 154 (2013)


to Chatham, was the properly named party, and that the            Dallas 2011, no pet.); Puri v. Mansukhani, 973 S.W.2d 701,
trial *166 court correctly confirmed the arbitration panel's      708 (Tex.App.-Houston [14th Dist.] 1998, no pet.)
award.”). Accordingly, based on the stipulation between the
parties and the foregoing law, we conclude that the arbitration    [16] [17] When a judgment is rendered as a matter of law,
panel correctly ascertained and determined the parties before     findings and conclusions have no purpose and should not
it. Moreover, we note that the issue regarding whether            be requested or considered on appeal. IKB Indus. (Nigeria)
Seashore had transferred interests to the Toby Shor 2004          Ltd., 938 S.W.2d at 443. Therefore, even when the trial
GRAT was a matter expressly submitted to the arbitrators.         court receives evidence, findings and conclusions are only
                                                                  appropriate if the trial court is called upon to determine
We overrule appellants' first and third issues.                   questions of fact upon conflicting evidence. Ford v. City of
                                                                  Lubbock, 76 S.W.3d 795, 796–98 (Tex.App.-Amarillo 2002,
                                                                  no pet.); Port Arthur Indep. Sch. Dist. v. Port Arthur Teachers
                                                                  Ass'n, 990 S.W.2d 955, 958 (Tex.App.-Beaumont 1999, pet.
              VI. FINDINGS OF FACT AND
                                                                  denied); see also K2M3, LLC v. Cocoon Data Holding Pty.
                CONCLUSIONS OF LAW
                                                                  Ltd., No. 13–11–00194–CV, 2012 WL 2469705, at *2–3,
 [14] In their second issue, appellants contend that the          2012 Tex.App. LEXIS 5203, at *9–10 (Tex.App.-Corpus
judgment should be reversed because, after modifying the          Christi June 28, 2012, pet. denied) (mem. op.).
award in the judgment, the trial court failed to issue findings
of fact and conclusions of law to correct a clerical error, and    [18] Because Rules 296 and 297 do not impose any duty
that judge is no longer on the bench, precluding supplemental     on the trial court to file findings and conclusions when
findings now. In this regard, appellants contend that the         there has been no trial—that is to say, when there has been
arbitration panel awarded damages to Seashore, whereas            no determination of questions of fact based on conflicting
the trial court's judgment, which recited and incorporated        evidence—there is no error in the trial court's failure to file
the arbitration award, rendered judgment “for Seashore             *167 findings and conclusions. See Waterman S.s. Corp.
Investments Management Trust through its trustee Toby Shor        v. Ruiz, 355 S.W.3d 387, 428 (Tex.App.-Houston [1st Dist.]
(‘Seashore’).”                                                    2011, pet. denied); In re Estate of Davis, 216 S.W.3d 537, 542
                                                                  (Tex.App.-Texarkana 2007, pet. denied); Niehaus v. Cedar
 [15] Pursuant to Rules 296 and 297 of the Texas Rules of         Bridge, Inc., 208 S.W.3d 575, 579 n. 5 (Tex.App.-Austin
Civil Procedure, a trial judge must, when properly requested,     2006, no pet.).
prepare findings of fact in cases tried in the district court
or county court without a jury. See TEX.R. CIV. P. 296            Based upon the foregoing, we conclude that the trial court
(providing that “in any case tried in the district or county      did not err in failing to make findings and conclusions.
court without a jury, any party may request the court to          In the instant case, the trial court proceedings regarding
state in writing its findings of fact and conclusions of law”);   the arbitration award were heard in the same manner and
Id. R. 297 (specifying the timetable for filing findings of       on the same notice as a motion in a civil case. See TEX.
fact and conclusions of law and the procedure for filing          CIV. PRAC. & REM.CODE ANN. § 171.093 (West 2011).
a notice of past due findings of fact and conclusions of          Specifically, no evidence was adduced by the parties at the
law). Rule 296 gives “a party a right to findings of fact and     hearing on the motion to confirm the arbitration award. The
conclusions of law finally adjudicated after a conventional       trial court did not make determinations of fact based on
trial on the merits before the court.” IKB Indus. (Nigeria)       conflicting evidence; rather, that function was subsumed in
Ltd. v. Pro–Line Corp., 938 S.W.2d 440, 442 (Tex.1997).           the arbitration process by the arbitrators. Accordingly, we
In other cases, findings and conclusions are “proper, but a       overrule appellants' second issue. See Waterman S.s. Corp.,
party is not entitled to them.” Id.; see GE Capital Corp. v.      355 S.W.3d at 428; see also Wiggins v. S. Energy Homes
ICO, Inc., 230 S.W.3d 702, 710–11 (Tex.App.-Houston [14th         of Tex., Inc., No. 05–06–00769–CV, 2007 WL 2875357,
Dist.] 2007, pet. denied). The term “tried” for the purposes      at *1–2, 2007 Tex.App. LEXIS 7900, at *3–4 (Tex.App.-
of rule 296 includes the disposition of a case rendered after     Dallas Oct. 4, 2007, no pet.) (mem. op.) (concluding that
an evidentiary hearing before the trial court upon conflicting    the trial court did not err in failing to issue findings and
evidence. See R.H. v. Smith, 339 S.W.3d 756, 761 (Tex.App.-       conclusions in proceedings regarding an arbitration award);
                                                                  Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co.,



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Black v. Shor, 443 S.W.3d 154 (2013)


164 S.W.3d 438, 442 (Tex.App.-Houston [14th Dist.] 2005,                questions about what should be terminated, when it should
no pet.) (reviewing trial court's summary judgment affirming            happen [,] and how it should be done. Even Mr. Black
an arbitration award).                                                  admitted there was no deadline to accomplish termination.
                                                                        Moreover, [appellants'] conduct before and after the notice
                                                                        of termination, and their refusal to provide necessary
                                                                        information, excused performance of that agreement by
                  VII. PUBLIC POLICY
                                                                        [appellees] and thwarted any ability to terminate.
 [19] By their fourth issue, appellants contend that the
                                                                        In addition to the failure to prove breach, [appellants]
judgment and award should be set aside and remanded
                                                                        failed to prove that the alleged breaches caused any actual,
to a different arbitration panel because the panel failed to
                                                                        recoverable damages or actually precluded [appellants]
give effect to the termination of the partnership and the
allocation of liabilities and offsets that would result from            from hedging. [ 3 ] The causal connection between
a partnership termination. In connection with this issue,               the alleged breach and the damages claimed was so
appellants argue that as “matter of public policy in this               tenuous that it established no causal connection at all.
state,” appellants were absolutely entitled to terminate their          In addition, the damages claimed were impermissibly
partnership relationships, and that the judgment and award              speculative, requiring, among other things, an assumption
failed to give effect to the legal termination of the partnership       that [appellants] would have successfully engaged in
and the allocation of liability and indemnity that would be             physical hedging in the gas market. Such assumptions
triggered by such a termination. Appellants contend that                were not proven by the evidence presented. Accordingly
“[s]imply put, people cannot be forced to remain partners. The          [appellants'] claims for breach of the Termination
arbitration decision fails to recognize this important public           Agreement claims are denied and [appellants] shall take
policy decision for Texas.”                                             nothing on those claims.


 [20] Public policy is not listed as a ground for vacatur under     3        “Hedging” is a method used to protect one's investment
the TAA. For purposes of this opinion, we assume, without                    or an investor against loss by making balancing or
deciding, that a public policy concern is a valid ground to                  compensating contracts or transactions. See http://
set aside an arbitration award. The Texas Supreme Court has                  www.oxforddictionaries.com/hedge (last visited March
previously held that an arbitration award cannot be set aside                21, 2013).
on public policy grounds except in an “extraordinary case”
in which the award “clearly violates carefully articulated,            [Appellants'] request for an order directing termination and
fundamental policy.” CVN Group, Inc., 95 S.W.3d at 239.                division of property also is denied. The Bankruptcy Court
To support vacatur of an arbitration award, a public policy            proceeding and other events and activities have progressed
concern must be “well defined and dominant” and not derived            to such a stage that a termination order would not be
“from general considerations of supposed public interests.”            fair, fully-effective[,] or meaningful at this time. Moreover,
Id. at 239–40 (quoting United Paperworkers Int'l Union v.              most of the relief requested is not warranted under the
Misco, Inc., 484 U.S. 29, 44, 108 S.Ct. 364, 98 L.Ed.2d 286            Termination Agreement or otherwise. Accordingly, the
(1987)); see Lee v. Daniels & Daniels, 264 S.W.3d 273, 278             request for an order directing termination and division of
(Tex.App.-San Antonio 2008, pet. denied).                              property is denied.
                                                                    Although appellants cite case law for the proposition that
Appellants' arguments regarding their alleged right to              there are no restrictions on a partner's ability to terminate a
terminate the partnerships were submitted to, and heard by,         partnership, see Bohatch v. Butler & Binion, 977 S.W.2d 543,
the arbitration panel. The panel concluded, inter alia:             545–46 (Tex.1998), appellants provide no authority for the
                                                                    proposition that such ability is a well-defined, fundamental
  Although [appellants] allege a breach of the Termination          public policy. See CVN Group, Inc., 95 S.W.3d at 239.
  Agreement[,] they *168 failed to prove by a                       Appellants' arguments that they were entitled to termination
  preponderance of the credible evidence that any breach            of the partnership were disputed by appellees and the issue
  actually occurred. Rather, the evidence established that          was submitted to the arbitrators. Appellants contend that the
  although there was an agreement by [appellees] with               arbitrators were wrong; but a mere error, if any, does not
  respect to termination, [appellees] raised legitimate



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Black v. Shor, 443 S.W.3d 154 (2013)


necessarily implicate a violation of public policy. See id. We     given to conflicting claims, no matter how erroneous, is not
overrule appellants' fourth issue.                                 arbitrary and capricious. Xtria L.L.C., 286 S.W.3d at 598.

                                                                    [27] We note that the doctrines of manifest disregard and
                                                                   gross mistake do not extend to mere mistakes of fact or law.
                     VIII. DAMAGES
                                                                   Judicial review of an arbitration award “is so limited that even
 [21] By their fifth issue, appellants contend that the            a mistake of fact or law by the arbitrator in the application of
judgment and award should be reformed to eliminate                 substantive law is not a proper ground for vacating an award.”
duplicative tort and contract recovery. Appellants assert          Centex/Vestal, 314 S.W.3d at 683; Xtria L.L.C., 286 S.W.3d
that the arbitrators' finding of fraud in connection with          at 591; Universal Computer Sys., Inc. v. Dealer Solutions,
appellants' breach of the promissory notes constitutes a           L.L.C., 183 S.W.3d 741, 752 (Tex.App.-Houston [1st Dist.]
manifest disregard of the law. Appellants further contend          2005, pet. denied).
that the arbitration award violates the one-satisfaction rule by
awarding damages for both tort and contract breaches, thereby      [28] It is clear from the record from the arbitration hearing
awarding a double recovery for the same injury, and that the      and the panel's lengthy written decision that the arbitration
tort and fraud recoveries are subsumed within the recovery        panel gave serious consideration to the parties' contentions,
on the notes.                                                     evidence, and arguments. Nothing in the record suggests the
                                                                  panel made its decision in bad faith or that it failed to exercise
 [22]     [23]     [24] Manifest disregard is a very narrow honest judgment. The trial court should not overturn an
standard of review. *169 Xtria L.L.C., 286 S.W.3d at 594;         arbitration award rendered after honest consideration given to
Home Owners Mgmt. Enters., Inc. v. Dean, 230 S.W.3d               claims and defenses presented to it, no matter how erroneous.
766, 768–69 (Tex.App.-Dallas 2007, no pet.). It is more           See Xtria L.L.C, 286 S.W.3d at 598; Werline, 209 S.W.3d
than error or misunderstanding of the law. Xtria L.L.C.,          at 898. Accordingly, we hold the trial court did not err in
286 S.W.3d at 594. Instead, the error must be “obvious            denying the motion to vacate on this ground. We overrule
and capable of being readily and instantly perceived by the       appellants' fifth issue.
average person qualified to serve as an arbitrator.” Id. Under
this standard, the arbitrator recognizes a clearly governing
principle and ignores it. Id. In other words, the issue is                           IX. ATTORNEY'S FEES
not whether the arbitrator correctly interpreted the law, but
whether the arbitrator, knowing the law and recognizing that       [29] In their sixth issue, appellants contend that the award
the law required a particular result, simply disregarded the      of attorney's fees to Shor should be reversed and rendered
law. Id.; Pheng Invs., Inc. v. Rodriquez, 196 S.W.3d 322,         because she was not a prevailing party and there is no other
332 (Tex.App.-Fort Worth 2006, no pet.)). It is appellants'       basis for awarding her fees. According to appellants, Shor did
burden to demonstrate the arbitrator manifestly disregarded       not recover individually on any cause of action.
the law. Xtria L.L.C., 286 S.W.3d at 594; Tanox, Inc. v. Akin,
Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 253          The parties agreed to arbitrate in accordance with the
(Tex.App.-Houston [14th Dist.] 2003, pet. denied).                Commercial Arbitration Rules of the American Arbitration
                                                                  Association, and those rules allow the recovery of attorneys'
 [25]     [26] Gross mistake is conceptually analogous to fees “if all parties have requested such an award.” AAA
manifest disregard. See Int'l Bank of Commerce v. Int'l Energy    Comm. R. 43(d). The record from the arbitration hearing
Dev. Corp., 981 S.W.2d 38, 48 (Tex.App.-Corpus Christi             *170 indicates that the parties had requested attorneys' fees.
1998, pet. denied). A gross mistake is a mistake that implies     Moreover, the TAA provides that arbitrators “shall award
bad faith or a failure to exercise honest judgment and results    attorney's fees as additional sums required to be paid under the
in a decision that is arbitrary and capricious. Xtria L.L.C., 286 award only if the fees are provided for: (1) in the agreement
S.W.3d at 598; Werline v. E. Tex. Salt Water Disposal Co.,        to arbitrate; or (2) by law for a recovery in a civil action
209 S.W.3d 888, 898 (Tex.App.-Texarkana 2006), aff'd, 307         in the district court on a cause of action on which any part
S.W.3d 267, 268 (Tex.2010); Teleometrics Int'l, Inc. v. Hall,     of the award is based.” TEX. CIV. PRAC. & REM.CODE
922 S.W.2d 189, 193 (Tex.App.-Houston [1st Dist.] 1995,           ANN. § 171.048(c). By statute, Texas allows recovery for
writ denied). A judgment rendered after honest consideration      attorney's fees in claims for breach of an oral or written



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Black v. Shor, 443 S.W.3d 154 (2013)



contract. See id. § 38.001(8) (West 2008). Texas also allows
the recovery of attorney's fees for statutory fraud. See TEX.
BUS. & COM.CODE ANN. § 27.01 (West 2009).                                                    X. CONCLUSION

In this case, the arbitrator's award of fees is authorized by           Having overruled each of appellants' issues, we affirm the
law. See Centex/Vestal, 314 S.W.3d at 687. Moreover, to the             judgment of the trial court.
extent that appellants' arguments under this issue focus on the
allegation that Shor was not a proper party to the arbitration or
                                                                        All Citations
to receive an award, we have already addressed these issues
and need not address them further in connection with this               443 S.W.3d 154
issue. See TEX.R.APP. P. 47.1, 47.4. We overrule issue six.

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                16
Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (1971)




                                                                        5 Cases that cite this headnote
                    463 S.W.2d 424
                 Supreme Court of Texas.
                                                                  [2]   Courts
          Mary Frances FEW et vir, Petitioners,                               Construction and application of particular
                         v.                                             rules
               The CHARTER OAK FIRE                                     106 Courts
         INSURANCE COMPANY, Respondent.                                 106II Establishment, Organization, and Procedure
                                                                        106II(F) Rules of Court and Conduct of Business
             No. B—2276.        |   Jan. 27, 1971.                      106k85 Operation and Effect of Rules
                                                                        106k85(3) Construction and application of
Injured worker, joining her husband pro forma, sued                     particular rules
insurer for workmen's compensation benefits as result of                When Rule of Civil Procedure on joinder of
injury. The 115th District Court, Wood, County, Looney E.               parties established pursuant to limited power
Lindsey, J., rendered judgment for plaintiffs, and the insurer          vested in Supreme Court by state Constitution to
appealed. The Tyler Court of Civil Appeals, Twelfth Supreme             establish rules of procedure not inconsistent with
Judicial District, Dunagan, C.J., 456 S.W.2d 156, reversed              law of state conflicts with legislative enactment,
judgment and remanded for retrial. The injured worker                   the rule must yield. Vernon's Ann.St.Const. art.
brought error. The Supreme Court, Pope, J., held that under             5, § 25; Vernon's Ann.Civ.St. arts. 1731a, § 2,
statutes, injured worker properly sued without joining her              4621, 4626; Rules of Civil Procedure, rule 39(a).
husband for recovery of workmen's compensation benefits,
notwithstanding Rule of Civil Procedure which provides that             29 Cases that cite this headnote
persons having joint interest shall be made parties, but that
where injured worker was being furnished by insurer with          [3]   Husband and Wife
physician and medical services and the worker without notice                Parties
to the insurer changed doctors, and the insurer informed the            205 Husband and Wife
worker that the treatment was unauthorized and asked that she           205VII Community Property
return to physician it had provided, the insurer was not liable         205k270 Actions
for services rendered by the second doctor.                             205k270(5) Parties
                                                                        Under statutes, injured worker properly
Judgment of Court of Civil Appeals reversed; trial court                sued without joining her husband for
judgment modified and affirmed.                                         recovery of workmen's compensation benefits,
                                                                        notwithstanding Rule of Civil Procedure which
                                                                        provides that persons having joint interest shall
                                                                        be made parties. V.T.C.A., Family Code, §§
 West Headnotes (5)
                                                                        4.04, 5.22; Vernon's Ann.Civ.St. arts. 4621,
                                                                        4626; Rules of Civil Procedure, rule 39.
 [1]    Husband and Wife
            Damages for injuries to husband or wife                     16 Cases that cite this headnote

         205 Husband and Wife
         205VII Community Property                                [4]   Workers' Compensation
         205k260 Damages for injuries to husband or wife                      Employer's failure to provide or waiver
        Where injured worker and her husband                            of right to provide as permitting employee's
        had been married for many years prior                           securing services elsewhere
        to her accident and they were married at                        413 Workers' Compensation
        time of workmen's compensation proceeding,                      413IX Amount and Period of Compensation
        workmen's compensation award was community                      413IX(H) Medical or Other Expenses
        property.                                                       413IX(H)1 In General




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (1971)


          413k973 Enforcement or Preservation of Right to
          Expenses                                             Mary Frances Few, joining her husband pro forma, sued
          413k976 Employer's failure to provide or waiver      Charter Oak Fire Insurance Company for total and permanent
          of right to provide as permitting employee's         incapacity suffered in the course of her employment with
          securing services elsewhere                          Safeway Grocery in Mineola, Texas. The trial court awarded
        Where injured worker was being furnished by            judgment for the plaintiffs, naming botrh Mary Frances and
        insurer with physician and medical services and        her husband in the judgment. The court of civil appeals,
        the worker without notice to the insurer changed       with a divided court, reversed the judgment for plaintiffs
        doctors, and the insurer informed the worker           and remanded the cause for re-trial, holding that the husband
        that the treatment was unauthorized and asked          was an indispensable party and that he was not joined as
        that she return to physician it had provided, the      a real party. That court held also that the trial court erred
        insurer was not liable for services rendered by the    in awarding plaintiffs damages for certain medical services
        second doctor. Vernon's Ann.Civ.St. art. 8306, §       furnished Mary Frances Few by her private physician when
        7.                                                     there was no proof that the insurer failed, refused, or neglected
                                                               to furnish necessary medical services. 456 S.W.2d 156. It
        9 Cases that cite this headnote                        is our opinion that the court incorrectly decided the first of
                                                               these issues but correctly decided the other. The judgment
 [5]    Pretrial Procedure                                     of the court of civil appeals is reversed and judgment is
            Effect                                             here rendered modifying the trial court's judgment and, as
          307A Pretrial Procedure                              modified, affirming that judgment.
          307AII Depositions and Discovery
                                                               Plaintiff says that we should reverse the judgment of the
          307AII(G) Requests for Admissions
          307Ak481 Effect                                      court of civil appeals because (1) the husband was not an
              (Formerly 127k128 Discovery)                     indispensable party under the recently enacted Articles 4621
        Where insurer pursuant to Rule of Civil                and 4626, 1 (2) the defendant waived any defect in parties by
        Procedure providing for request for admission          failing to object to the non-joinder, and (3) her husband was
        of facts and of genuineness of documents made          actually made a real party. The first reason stated above is a
        admission that it had paid or agreed to pay bill for   correct one, so we need not discuss the other two.
        services rendered by certain doctor, the insurer       1       All Statutory references are to Vernon's Texas Civil
        was bound by the admission and liable for the                  Statutes. Articles 4621 and 4626 were carried forward
        services rendered. Rules of Civil Procedure, rule              into the Family Code by the 61st Legislature as Articles
        169.                                                           5.22 and 4.04 respectively.

        Cases that cite this headnote                           [1] Mary Frances Few and her husband, Milburn Few,
                                                               had been married for many years prior to her accident on
                                                               June 20, 1968, and they are still married. For this reason
                                                               her workmen's compensation award was their community
                                                               property. Pickens v. Pickens, 125 Tex. 410, 83 S.W.2d
Attorneys and Law Firms
                                                               951, 953 (1935). Community ownership may also be called
 *424 Smith Johnson & McDowell, William McDowell,              a joint ownership. Dillard v. Dillard, 341 S.W.2d 668
Sulphur Springs, Woodrow H. Edwards, Mount Vernon, for         (Tex.Civ.App.1961, writ ref. n.r.e.); Hitchcock v. Cassel, 275
petitioners.                                                   S.W.2d 205 (Tex.Civ.App.1955, writ ref. n.r.e.). Rule 39,
                                                               Texas Rules of Civil Procedure, as it was worded at the time
*425 Ramey, Brelsford, Flock, Devereux & Hutchins,             of the trial, 2 provided that persons having a joint interest
Donald Carroll and Mike Hatchell, Tyler, for respondent.       shall be made parties. It was this rule which prompted the
                                                               court of civil appeals to hold that the wife's husband was
Opinion
                                                               an indispensable party. The court relied upon our recent
POPE, Justice.                                                 opinion in Petroleum Anchor Equipment Co., Inc. v. Tyra,
                                                               406 S.W.2d 891, 892—893 (Tex.1966), in which we applied
                                                               Rule 39. In that case we held that persons who hold a joint



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (1971)


interest shall or must be made parties and are indispensable
parties.                                                            Articles 4621 and 4626 were designed to correct an
                                                                    anomalous situation concerning the rights of a Texas wife.
2                                                                   Almost from the beginning of Texas history, the right of a
        The rule was changed, effective January 1, 1971.
                                                                    wife to own property has been recognized, but it has taken
 [2] If only Rule 39 were involved in the case before us,           more than a century to give the wife managerial powers over
our decision would be controlled by our earlier decision in         that which she owns.
Petroleum Anchor. However, we are now faced with two
relevant statutes enacted by the legislature. Article V, Sec.       The Constitution of 1836 recognized the community property
25, of the Texas Constitution, Vernon's Ann.St. vests in the        system of Mexico and Spain and on January 20, 1840, the
Supreme Court the power to establish rules of procedure ‘not        Fourth Congress of the Republic determined to follow that
inconsistent with the law of the State.’ Legislative authority      system in matters of marital property. 2 Gammel Laws of
for this power is found in Article 1731a, Sec. 2. Rule 39           Texas 177—178 (1840). The system has proved to be much
was established pursuant to this power. As the constitutional       fairer in its recognition of the wife's rights of ownership than
provision indicates, this is a limited power; and when a rule of    that afforded her by the common law. 1 de Funiak, Principles
the court conflicts with a legislative enactment, the rule must     of Community Property, Sec. 3 (1943).
yield. Missouri, K. & T.R. Co. v. Beasley, 106 Tex. 160, 155
                                                                    The common law had visited upon a wife an intolerable state
S.W. 183 (1913), rehearing denied, 106 Tex. 160, 160 S.W.
                                                                    of civil disability both in owning and managing property.
471.
                                                                    As expressed by Vaughn, that system ‘suspended the wife's
                                                                    legal existence during the marriage, or at least consolidated it
Articles 4621 and 4626 are the statutes which control this          into that of the husband.’ Vaughn, The Policy of Community
case. Enacted by the *426 60th Legislature and effective            Property and Inter-Spousal Transactions, 19 Bay.L.Rev. 20,
January 1, 1968, they provided:                                     48—49 (1967). At common law, the husband and wife were
Art. 4621. * * * During marriage each spouse shall have             one, and the husband was that one. Murphy v. Coffey, 33
sole management, control and disposition of that community          Tex. 508 (1870). The woman's legal existence, according
property which he or she would have owned if a single               to Blackstone, was merged into that of her husband, ‘under
person, including (but not limited to) his or her personal          whose wing, protection, and cover, she performs everything;
earnings, the revenues from his or her separate property, the       and is therefore called in our law-French, a feme covert, and is
recoveries for personal injuries awarded to him or her, and the     said to be under the protection and influence of her husband,
increase, mutations and revenues of all property subject to his     her baron, or lord, and her condition during her marriage is
or her sole management, control and disposition; the earnings       called her coverture. * * * If the wife be injured in her person
of an unemancipated minor are subject to the management,            or her property, she can bring no action for redress without
control and disposition of the parents or parent having custody     her husband's concurrence, and in his name, as well as her
of the minor; if community property subject to the sole             own. * * *’ Erlich's Blackstone, pp. 83, 84 (1959).
management, control and disposition of one spouse is mixed
                                                                    The Republic treated the wife's right to manage her property
or combined with community property subject to the sole
                                                                    differently from her right to own that property. The same
management, control and disposition of the other spouse, the
                                                                    act of the Fourth Congress which recognized the community
mixed or combined community property is subject to the joint
                                                                    property system of ownership, took from the wife any powers
management, control and disposition of the spouses unless the
                                                                    to manage what she owned and gave the sole management
spouses otherwise provide; any other community property is
                                                                    of the wife's property to the husband. 2 Gammel, Laws of
subject to the joint management, control, and disposition of
                                                                    Texas 178 (1840). It has been the law of Texas for more
the husband and wife.
                                                                    than a century that, except in limited situations, only the
                                                                    husband could bring suit for community recoveries arising
Art. 4626. * * * ‘A spouse may sue and be sued without the
                                                                    out of a wife's loss of earning capacity. Roberts v. Magnolia
joinder of the other spouse. When claims or liabilities are joint
                                                                    Petroleum Co., 142 S.W.2d 315 (Tex.Civ.App.1940, *427
and several, the spouses may be joined under the rules relating
                                                                    writ ref., (135 Tex. 289, 143 S.W.2d 79)); Loper v. Western
to joinder of parties generally.’
                                                                    U. Teleg. Co., 70 Tex. 689, 8 S.W. 600 (1888); Gallagher v.
                                                                    Bowie, 66 Tex. 265, 17 S.W. 407 (1886); Ezell v. Dodson,



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (1971)


60 Tex. 331 (1883); Murphy v. Coffey, supra; Firence             case of joint and several claims, the spouses ‘may be joined
Footwear Co. v. Campbell, 406 S.W.2d 516, 411 S.W.2d             under the rules relating to joinder of parties generally.’
636 (Tex.Civ.App.1967, writ ref. n.r.e.); Urban v. Field, 137     [3] Charter Oak argues that Rule 39(a) is the rule of joinder
S.W.2d 137 (Tex.Civ.App.1940, no writ).                          to which Article 4626 referred in its phrase ‘under the rules
                                                                 relating to the joinder of parties generally.’ However, the
Seventy years ago Judge Ocie Speer deplored the situation        statute, unlike Rule 39(a) is permissive in terms. It is our
which recognized the wife's equality of ownership, yet denied    opinion that the legislature, in using permissive terms, was
that equality with respect to a wife's management of what she    recognizing that while the spouses' ownership interest in
owned. He wrote:                                                 certain property may be joint, the managerial interest in the
          The foolish fiction that her existence is              same property would be several. The legislature surely did
          merged in that of her husband has given                not intend by the use of the phrase ‘may be joined’ in Article
          way to the more enlightened recognition                4626 to take away the sole managerial authority which it had
          of her identity as an individual, and her              just established in Article 4621. In terms of the facts presently
          consequent capacity to own property,                   before us, Mr. Few would be a proper party to the suit because
          to make contracts, and to sue and be                   of his ownership interest in the workmen's compensation
          sued. Yet, as though fearing serious                   benefit. Howevr, he was not an indispensable party in view
          consequences of much moment, it has                    of his wife's sole managerial interest in the benefit. See, 23
          not altogether removed her fetters, but                Sw.L.J. 55 (1969); 22 Sw.L.J. 132 (1968). We hold that Mary
          is slowly, yet surely, tending, through                Frances Few properly sued without joining her husband for
          the course of legislative acts and judicial            the recovery of workmen's compensation benefits arising out
          interpretations, toward the enlargement                of her own injury.
          of her rights and powers, which will in
          time culminate in a proper recognition
          of all her civil rights. Speer, The Law                The court of civil appeals cited and relied upon its earlier
          of Married Women in Texas, Sec. 25                     decision in General Insurance Company of America v.
          (1901).                                                Casper, 426 S.W.2d 606 (Tex.Civ.App.1968, writ ref. n.r.e.).
                                                                 In a per curiam opinion we held that the court of civil appeals
                                                                 correctly reversed the judgment of the trial court on the
Efforts to rectify the wife's inferior legal powers as the       grounds that there was no *428 joinder of the plaintiff's
manager of her property have been infrequent; and over-broad     husband in a suit to recover workmen's compensation
corrective legislation changing the definition of community      benefits. See, 431 S.W.2d 311. We held, however, that the
property has been stricken down on constitutional grounds.       case did not present a question of fundamental error as stated
See Huie, Sec. 11, Commentary-Community Property Law,            by the court of civil appeals, since the error was preserved
13 Vernon's Tex.Stats., p. 39; Northern Texas Traction Co. v.    in the trial court. That case arose under Articles 4621 and
Hill, 297 S.W. 778 (Tex.Civ.App.1927, writ ref.).                4626 as enacted by the 58th Legislature in 1963. Those earlier
                                                                 statutes were unlike those we have in this case and they did
The disabilities of coverture remained as a remnant of the       not give the wife sole management over her community.
common law until 1967. During the intervening years, the          [4] The trial court also rendered judgment against Charter
wife in fact was still covert; her husband was still lord and    Oak for $808 medical services which plaintiff received from
baron. The 60th Legislature, in enacting Articles 4621 and       Doctors Thomas and Jones. Charter Oak was furnishing
4626, avoided the constitutional difficulties arising from an    plaintiff with a physician and medical services when the
attempt to modify legislatively the constitutional definition    plaintiff, without notice to the insurer, changed doctors. When
of community property. These statutes leave undisturbed the      the insurer learned that she was using doctors other than the
definition of community property, but more clearly define        one whom they had provided, it informed plaintiff that the
the managerial rights of each spouse. Article 4621 gave the      treatment was unauthorized and asked that she return to the
injured spouse powers to manage that community which she         physician they had provided.
would have owned if a single person, including recoveries
for personal injuries. Article 4626 authorized the wife to sue    [5]   Section 7, Article 8306, Vernon's Tex.Civ.Stats.,
without joining her husband, but it also provided that in the    provides that an employee will not be entitled to recover any
                                                                 amount expended or incurred by him for medical aid ‘unless


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (1971)


                                                                    pursuant to Rule 169 that it had paid or agreed to pay that bill.
the association or subscriber shall have had notice of the
                                                                    Charter Oak is bound by its admission.
injury and shall have refused, failed or neglected to furnish
(medical services) within a reasonable time. * * *’ There is
no evidence that Charter Oak refused, failed, or neglected          We reverse the judgment of the court of civil appeals, and
to furnish medical services as required by Section 7, Article       modify the judgment of the trial court by reducing plaintiffs'
8306. We hold that the insurer is not liable for the services       recovery by $745. As thus modified, the trial court's judgment
rendered by Dr. Jones, and the trial court should not have          is affirmed.
allowed recovery for the sum paid or owing to him. Charter
Oak was liable, however, for the services rendered by Dr.           All Citations
Thomas in the sum of $63 because it made an admission
                                                                    463 S.W.2d 424

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

                                                                      Nonprofit organization that received public
                                                                      funds for services provided to city under
                   2015 WL 3978138
                                                                      quid pro quo contract, which services were
                Supreme Court of Texas.
                                                                      designed enhance economic development, was
       Greater Houston Partnership, Petitioner,                       not “supported in whole or in part by public
                         v.                                           funds,” and thus, was not “government body,”
        Ken Paxton, Texas Attorney General;                           within meaning of Texas Public Information Act
                                                                      (TPIA); funds received from city constituted
           and Jim Jenkins, Respondents.
                                                                      compensation for services rendered under
       No. 13–0745 | Argued March 25, 2015                            contract, organization received only small
       | OPINION DELIVERED: June 26, 2015                             portion of its annual revenues from contract,
                                                                      organization would still continue to operate and
Synopsis                                                              perform same services without public funds.
Background: Private nonprofit organization that received              Tex. Gov't Code Ann. § 552.003(1)(A).
public funds from city pursuant to quid pro quo contract
brought action against Attorney General seeking declaratory           Cases that cite this headnote
judgment that it was not “government body” within meaning
of Texas Pubic Information Act. Petitioner whose records        [2]   Records
request organization denied intervened. The District Court,               Judicial enforcement in general
Travis County, 98th Judicial District, Scott H. Jenkins,              326 Records
J., entered judgment for Attorney General and ordered                 326II Public Access
disclosure of records requested. Organization appealed, and           326II(B) General Statutory Disclosure
Austin Court of Appeals, 407 S.W.3d 776, affirmed. Petition           Requirements
for review was granted.                                               326k61 Proceedings for Disclosure
                                                                      326k63 Judicial enforcement in general
                                                                      Whether an entity is a “governmental body”
                                                                      whose records are subject to disclosure under the
[Holding:] The Supreme Court, Guzman, J., held that private
                                                                      Texas Public Information Act (TPIA) presents a
organization was not “supported in whole or in part by
                                                                      matter of statutory construction that the appellate
public funds,” and thus, was not “government body,” within
                                                                      court reviews de novo. Tex. Gov't Code Ann. §
meaning of TPIA.
                                                                      552.003(1)(A).

                                                                      Cases that cite this headnote
Reversed and rendered.

Boyd, J., filed dissenting opinion in which Johnson and         [3]   Statutes
Willett, JJ., joined.                                                      Language and intent, will, purpose, or
                                                                      policy
                                                                      Statutes
                                                                           Plain Language; Plain, Ordinary, or
 West Headnotes (15)
                                                                      Common Meaning
                                                                      361 Statutes
 [1]    Records                                                       361III Construction
            Agencies or custodians affected                           361III(A) In General
        326 Records                                                   361k1078 Language
        326II Public Access                                           361k1080 Language and intent, will, purpose, or
        326II(B) General Statutory Disclosure                         policy
        Requirements                                                  361 Statutes
        326k51 Agencies or custodians affected                        361III Construction




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

        361III(B) Plain Language; Plain, Ordinary, or                 court recognizes and applies only the meanings
        Common Meaning                                                that are consistent with the statutory scheme as
        361k1091 In general                                           a whole.
        When interpreting a statute, the court's primary
        objective is to ascertain and give effect to the              1 Cases that cite this headnote
        Legislature's intent without unduly restricting
        or expanding the act's scope, and the court
                                                                [6]   Statutes
        seeks that intent first and foremost in the plain
                                                                           In general; factors considered
        language of the text.
                                                                      Statutes
        1 Cases that cite this headnote                                    Extrinsic Aids to Construction
                                                                      361 Statutes
                                                                      361III Construction
 [4]    Statutes
                                                                      361III(C) Clarity and Ambiguity; Multiple
             Undefined terms
                                                                      Meanings
        Statutes                                                      361k1103 Resolution of Ambiguity;
             Context                                                  Construction of Unclear or Ambiguous Statute or
        361 Statutes                                                  Language
        361III Construction                                           361k1104 In general; factors considered
        361III(D) Particular Elements of Language                     361 Statutes
        361k1123 Undefined terms                                      361III Construction
        361 Statutes                                                  361III(F) Extrinsic Aids to Construction
        361III Construction                                           361k1171 In general
        361III(E) Statute as a Whole; Relation of Parts to            When interpreting a statute, the court will only
        Whole and to One Another                                      resort to rules of construction or extrinsic aids
        361k1153 Context                                              when a statute's words are ambiguous.
        Undefined terms in a statute are typically given
        their ordinary meaning, but if a different or more            Cases that cite this headnote
        precise definition is apparent from the term's use
        in the context of the statute, the court will apply     [7]   Statutes
        that meaning.                                                      Liberal or strict construction
                                                                      361 Statutes
        1 Cases that cite this headnote
                                                                      361III Construction
                                                                      361III(A) In General
 [5]    Statutes                                                      361k1069 Liberal or strict construction
             Undefined terms                                          When interpreting a statute, liberal-construction
        Statutes                                                      objectives do not permit a construction of the act
             Construing together; harmony                             untethered from its statutory moorings.

        361 Statutes                                                  Cases that cite this headnote
        361III Construction
        361III(D) Particular Elements of Language
        361k1123 Undefined terms                                [8]   Statutes
        361 Statutes                                                       Context
        361III Construction                                           361 Statutes
        361III(E) Statute as a Whole; Relation of Parts to            361III Construction
        Whole and to One Another                                      361III(E) Statute as a Whole; Relation of Parts to
        361k1155 Construing together; harmony                         Whole and to One Another
        A court will not give an undefined term a                     361k1153 Context
        meaning that is out of harmony or inconsistent                Meanings of statutory terms cannot be
        with other terms in the statute; therefore, even              determined in isolation but must be drawn from
        if an undefined term has multiple meanings, the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

        the context in which they are used; the court                  361III(E) Statute as a Whole; Relation of Parts to
        must therefore analyze the reasonableness of                   Whole and to One Another
        each definition in light of the statutory context.             361k1159 Associated terms and provisions;
                                                                       noscitur a sociis
        Cases that cite this headnote                                  The canon of statutory construction known
                                                                       as “noscitur a sociis” —“it is known by its
                                                                       associates”—holds that the meaning of a word or
 [9]    Records
                                                                       phrase, especially one in a list, should be known
            Agencies or custodians affected
                                                                       by the words immediately surrounding it.
        326 Records
        326II Public Access                                            Cases that cite this headnote
        326II(B) General Statutory Disclosure
        Requirements
        326k51 Agencies or custodians affected                  [12]   Statutes
        For a private entity to be “sustained” by                           Language
        public funds, which would render the entity a                  361 Statutes
        “government body” subject to the Texas Public                  361III Construction
        Information Act (TPIA) suggests the existence                  361III(A) In General
        of a financially dependent relationship between                361k1078 Language
        the governmental body and a private entity or its              361k1079 In general
        subdivision redolent of that between a parent and              Even a liberal construction of a statute must
        child or principal and agent; however, financial               remain grounded in the statute's language.
        dependence need not be absolute. Tex. Gov't
                                                                       1 Cases that cite this headnote
        Code Ann. § 552.003(1)(A).

        Cases that cite this headnote                           [13]   Records
                                                                           Agencies or custodians affected
 [10]   Records                                                        326 Records
            Agencies or custodians affected                            326II Public Access
                                                                       326II(B) General Statutory Disclosure
        326 Records
                                                                       Requirements
        326II Public Access
                                                                       326k51 Agencies or custodians affected
        326II(B) General Statutory Disclosure
                                                                       Determining whether a private entity partially
        Requirements
        326k51 Agencies or custodians affected                         funded with public funds qualifies as a
        A private entity “supported” by public funds,                  “governmental body” subject to the Texas Public
        which would qualify the entity as a “government                Information Act (TPIA) will likely require case-
        body” subject to the Texas Public Information                  specific analysis and a close examination of the
        Act (TPIA), would not just receive government                  facts. Tex. Gov't Code Ann. § 552.003(1)(A).
        funds; it would require them to operate in whole
                                                                       Cases that cite this headnote
        or in part. Tex. Gov't Code Ann. § 552.003(1)
        (A).
                                                                [14]   Statutes
        Cases that cite this headnote                                       Associated terms and provisions; noscitur a
                                                                       sociis
 [11]   Statutes                                                       361 Statutes
             Associated terms and provisions; noscitur a               361III Construction
        sociis                                                         361III(E) Statute as a Whole; Relation of Parts to
                                                                       Whole and to One Another
        361 Statutes
                                                                       361k1159 Associated terms and provisions;
        361III Construction
                                                                       noscitur a sociis




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

        The canon of statutory construction “noscitur a         affairs under the Texas Public Information Act. In seeking
        sociis” that a word or phrase, especially one in a      to promote the public's legitimate interest in transparent
        list, should be known by the words immediately          government, the Act imposes considerable disclosure
        surrounding it, cannot be used to render express        obligations on “governmental bod[ies].” Importantly, the
        statutory language meaningless.                         statutory definition of “governmental body” extends only to
                                                                “the part, section, or portion of an organization, corporation,
        Cases that cite this headnote                           commission, committee, institution, or agency that spends
                                                                or that is supported in whole or in part by public funds.”
 [15]   Statutes                                                SeeTEX. GOV'T CODE § 552.003(1)(A)(xii) (emphasis
             Superfluousness                                    added). This operates to prevent nominally private entities
          361 Statutes
                                                                whose work might otherwise qualify them as de facto
          361III Construction                                   public agencies from circumventing the Act's disclosure
          361III(E) Statute as a Whole; Relation of Parts to    requirements. This case requires us to decide whether the term
          Whole and to One Another                              “supported” encompasses private entities contracting at arm's
          361k1156 Superfluousness                              length with the government to provide general and specific
        When interpreting a statute, the court will             services or whether the term properly includes only those
        generally attempt to avoid treating statutory           entities that could not perform similar services without public
        language as surplusage.                                 funds and, are thus, sustained—in whole or part—by such
                                                                funds.
        Cases that cite this headnote
                                                                When a private entity enters into a contract and receives
                                                                government funds in exchange for its services, the entity's
                                                                right to conduct its affairs confidentially may be in
On Petition for Review from the Court of Appeals for the        tension with the public's right to know how government
Third District of Texas. Honorable Scott H. Jenkins, Judge.     funds are spent. Transparency, openness, and accountability
                                                                in the government are all of fundamental importance.
Attorneys and Law Firms                                         However, these important policy objectives cannot extinguish
                                                                the privacy rights properly belonging to private business
Bill Aleshire, Aleshire Law PC, Jennifer S. Riggs, Riggs
                                                                entities in Texas. By liberally authorizing public access to
Aleshire & Ray, Austin, TX, Lynne Liberato, Polly B. Fohn,
                                                                government records while simultaneously shielding private
Haynes and Boone LLP, Houston, TX, for Petitioner.
                                                                business from unwarranted interference, the Legislature
Charles Roy, Daniel T. Hodge, First Asst. Attorney General,     carefully balanced these conflicting interests. Mindful of
David A. Talbot Jr., Consumer Protection, David C. Mattax,      the delicate equilibrium between these equally compelling
James Edward Davis, Kimberly L. Fuchs, Matthew H.               concerns, we conclude that the term “supported,” which helps
Frederick, Assistant Solicitor General, Warren Kenneth          define the breadth of the Act, unambiguously includes only
Paxton Jr., Office of the Attorney General, Rosalind L. Hunt,   those entities at least partially sustained by public funding.
Office of Attorney General, Administrative Law Divison,         Because the statutory language is unambiguous, we need not
Austin, TX, Eric Lyf Yollick, Yollick Law Firm, P.C., The       consider the accuracy or vitality of the test articulated in
Woodlands, TX, for Respondents.                                 Kneeland v. National Collegiate Athletic Ass'n, 850 F.2d 224
                                                                (5th Cir. 1988), which the Attorney General's Open Records
Opinion                                                         Division has traditionally applied to private entities in cases
                                                                involving open-record requests.
JUSTICE GUZMAN delivered the opinion of the Court,
in which CHIEF JUSTICE HECHT, JUSTICE GREEN,
                                                                Here, Greater Houston Partnership, a nonprofit corporation
JUSTICE LEHRMANN, JUSTICE DEVINE, and JUSTICE
                                                                providing economic-development services to the City and
BROWN joined.
                                                                other clients pursuant to quid pro quo contracts, contests
 *1 The question presented here is whether a private entity     whether it is a “governmental body” in whole or in part.
operating like a chamber of commerce is a “governmental         Applying Kneeland, the Attorney General and lower courts
body” subject to public disclosure of its private business      held that it is. We hold, however, that Greater Houston



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

Partnership is not a “governmental body” under the Texas
Public Information Act because it is not wholly or partially        The instant suit arose from a May 2008 request Houston-
sustained by public funds; we therefore reverse the court of        area resident Jim Jenkins submitted to GHP in which he
appeals' judgment and render judgment for Greater Houston           sought “a copy of the check register for [GHP] for all checks
Partnership.                                                        issued for the year 2007.” Jenkins grounded his request in the
                                                                    Texas Public Information Act (TPIA), claiming that “[p]ublic
                                                                    records show that [GHP] is an organization that spends or
                                                                    that is supported in whole or in part by public funds,” and
          I. Factual and Procedural Background
                                                                    GHP is, therefore, “subject to the Public Information Act in
 *2 Greater Houston Partnership (GHP) is a private,                 the same manner as a governmental body.” SeeTEX. GOV'T
nonprofit corporation that promotes regional economic               CODE § 552.003(1)(A)(xii) (defining “governmental body”
growth and an attractive business climate for a ten-                for purposes of the TPIA).
county area centered around Houston, Texas. GHP's stated
purpose is to enhance economic prosperity, facilitate business      GHP objected to Jenkin's request and did not disclose the
relocation and expansion, encourage international outreach          information. GHP acknowledged it received public funds
initiatives, and provide strategic planning to advocate for “the    from the City but disagreed it qualified as a “governmental
improvement of commercial, industrial, agricultural, civic,         body” under the TPIA because the public funds were
and cultural affairs” in the Houston region. In furtherance         compensation for vendor services provided pursuant to
of this objective, GHP provides consulting, event planning,         an arm's-length contract with the City. The City's annual
and marketing services (including advertising and market            payments under the contract amounted to less than 8% of
research) to its roughly 2,100 member companies on a                GHP's total annual revenue; member contributions, on the
contractual basis. GHP also hosts numerous networking               other hand, totaled more than 90% of its revenue. GHP further
and professional development events, including several              noted that of the roughly 2,100 companies that comprise its
weekly GHP Council meetings on topics relevant to the               membership, only four could be described as governmental
regional economy. GHP operates on an annual budget                  bodies. Refusing to disclose the requested information, GHP
of approximately $11.7 million, and these funds emanate             referred the matter to the Texas Attorney General as required
primarily from membership revenue. In short, GHP functions          under the TPIA. See id. §§ 552.301(a), .307.
much like thousands of chambers of commerce across the
nation that promote municipal and regional economies.               In an informal letter ruling, the Attorney General's Open
                                                                    Records Division agreed with Jenkins, and concluded that
Consistent with its business model, GHP contracted to               GHP was a “governmental body” subject to the TPIA's
provide consulting, event planning, and marketing services          disclosure requirements specifically with respect to the 2007
to the City of Houston, pursuant to an “Agreement for               contract with the City. 1 Tex. Att'y Gen. OR2008–16062;
Professional Services.” GHP and the City signed similar             see alsoTEX. GOV'T CODE § 552.306. In reaching this
agreements annually for several years, including 2007 and           conclusion, the Attorney General determined that GHP's
2008, the time periods at issue here. The contracts included        operations were “supported” by the City because: (1) GHP
a “Scope of Services” exhibit that delineated, under general        provided vague and indefinite services to the City aimed at
headers, the specific services that GHP would provide to            advancing the City's overall economic development; (2) GHP
the City. Under these contracts, GHP received quarterly             and the City shared a common purpose and objective centered
payments in arrears contingent upon the City's approval of          around the City's economy; and (3) GHP provided services
performance reports detailing the particular services GHP           traditionally supplied by the government. Tex. Att'y Gen.
provided in that quarter. If GHP failed to deliver the              OR2008–16062.
contracted-for services to the City's satisfaction, the contracts
authorized the City to pay GHP for the portion of services          1      GHP did not claim any exemptions from mandatory
satisfactorily rendered. Notably, however, the two contracts               disclosure and only challenged that it is a governmental
differed in one significant respect: the 2008 contract expressly           body subject to the TPIA in the first instance.
provided that “[n]othing in this Agreement shall be construed
                                                                    *3 In response to the Attorney General's informal ruling,
to imply that [GHP] is subject to the Texas Public Information
                                                                    GHP filed a declaratory-judgment action against the Attorney
Act.”
                                                                    General seeking a declaration that: (1) the Attorney General


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   5
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

lacked jurisdiction over the dispute and (2) even if jurisdiction
was proper, GHP was not a “governmental body” under the             3      Derived from a handful of nascent open-records rulings,
TPIA. See TEX. GOV'T CODE §§ 552.3215(e), .321, .325(a).                   the Kneeland test originated in a 1986 case considering
Shortly after GHP filed suit, Jenkins filed an additional                  whether the National Collegiate Athletic Association
request seeking a copy of GHP's 2008 “disbursement registers               and Southwest Athletic Conference were “supported in
and/or check registers,” including the number, date, payee                 whole or in part by public funds” under the TPIA's
name, amount, and purpose. Noting that GHP had already                     predecessor statute. See Kneeland v. Nat'l Collegiate
filed suit regarding the 2007 check-register request, the                  Athletic Ass'n, 650 F.Supp. 1047 (W.D.Tex.1986),
Attorney General closed the second request without a finding               rev'd,850 F.2d 224 (5th Cir. 1988). “Finding no
and directed the trial court to resolve the dispute. Jenkins               dispositive Texas jurisprudence on this issue,” the Fifth
                                                                           Circuit “closely examine[d] the opinions of the Texas
intervened in the lawsuit shortly thereafter. See id. § 552.325
                                                                           Attorney General” and discovered “helpful signs, albeit
(authorizing a requestor to intervene in the suit).
                                                                           mixed signals, in the [Attorney General] opinions.”
                                                                           Id. at 228. Despite a rather tepid endorsement, and
After a bench trial, the trial court found GHP was a                       without considering the statutory language, the court
“governmental body” supported by public funds and ordered                  identified and applied “three distinct patterns of analysis
disclosure of the 2007 and 2008 check registers. 2 The trial               in opinions interpreting [the funding-source element]
court determined that:                                                     of the Act” to private entities. Id. Those “patterns of
                                                                           analysis” provided the foundation for what became the
    • GHP received public funds to provide economic                        three-pronged Kneeland test.
      development and promotion services for or on behalf of        On appeal to this Court, GHP advances three principal
      the City;                                                     reasons why it is not a “governmental body” under the
                                                                    TPIA. First, GHP contends the phrase “supported ... by
    • GHP and the City shared the common purpose of
                                                                    public funds” unambiguously excludes the City's payments
      economic development and promotion; and
                                                                    to GHP. Second, even if the language is ambiguous, the
    • An agency-type relationship was created between GHP           Court should reject the Kneeland test because it is unclear
      and the City of Houston.                                      and not grounded in the statutory language. Third, GHP
                                                                    argues it is not “supported ... by public funds” even under
2                                                                   the Kneeland test. The Attorney General disputes all three
        The sole witness was Tracye McDaniel, GHP's executive
        vicepresident and chief operating officer. Documentary
                                                                    points. First, it contends that GHP plainly qualifies as a
        evidence included: six other contracts between GHP          “governmental body” under the TPIA; limiting the statute's
        and other governmental bodies executed after 2008; the      reach to entities that exist solely to carry out government
        contracts between the City and GHP for fiscal years         functions would frustrate its purpose of openness, and GHP is
        2007, 2008, and 2009; GHP's Articles of Incorporation;      “supported” by public funds. Second, the Kneeland test is not
        Jenkins's requests for the 2007 and 2008 check registers;   only the relevant framework in which to evaluate the TPIA's
        all four quarterly performance reports GHP submitted        application to otherwise private entities, the Legislature has
        to the City in 2007; and performance reports GHP
                                                                    effectively endorsed the Kneeland test. 4 Third, the court
        submitted to other governmental bodies in 2007 and
                                                                    of appeals properly applied the three Kneeland elements to
        2010.
                                                                    GHP, a “governmental body” subject to regulation under the
The court of appeals agreed with the trial court and affirmed       TPIA.
its judgment, albeit over a strongly worded dissent. 407
S.W.3d at 786, 787. Finding the phrase “supported in whole or       4      The Legislature has amended the TPIA several times
in part by public funds” ambiguous, the lower court relied on
                                                                           without materially altering the funding-source element
an extra-textual analytical construct known as the Kneeland
                                                                           of the “governmental body” definition. See Act of May
test to conclude GHP qualified as a governmental body                      29, 1995, 74th Leg., R.S., ch. 1035, § 2, 1995 Tex. Gen.
under the TPIA. 3 Id. at 782–83. The dissent criticized the                Laws 5127, 5128; see also Act of May 20, 1991, 72nd
court's reliance on the Kneeland test, finding the statutory               Leg., R.S., ch. 306, § 5, 1991 Tex. Gen. Laws 1340,
context unambiguously dictated only the narrow construction                1341–42; Act of May 17, 2001, 77th Leg., R.S., ch. 633,
of “supported” as applied to a private entity. Id. at 788 (Jones,          § 2, 2001 Tex. Gen. Laws 1194, 1194–95; Act of April
C.J., dissenting).                                                         23, 1999, 76th Leg., R.S., ch. 62, § 18.24, 1999 Tex. Gen.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      6
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

        Laws 127, 403; Act of May 24, 2001, 77th Leg., R.S.,        “supported in whole or in part by public funds.” The proper
        ch. 1004, § 2, 2001 Tex. Gen. Laws 2186, 2187; Act of       scope of this phrase is significant because the consequences of
        May 20, 2003, 78th Leg., R.S., ch. 1276, § 9.014, 2003      being characterized as a governmental body are considerable.
        Tex. Gen. Laws 4158, 4218.                                  The most obvious is that under section 552.221 of the Texas
 *4 We granted GHP's petition for review to determine the           Government Code, a “governmental body” must promptly
proper scope of the funding source element of the TPIA's            produce “public information” on request unless an exemption
“governmental body” definition.                                     from disclosure applies and is timely asserted. 7 See id.
                                                                    §§ 552.101–.123, .221; see also Tex. Comptroller of Pub.
                                                                    Accounts v. Att'y Gen. of Tex., 354 S.W.3d 336, 341–48
                         II. Discussion                             (Tex.2010) (construing an exemption under the TPIA). The
                                                                    term “public information” broadly includes “information
                                                                    that is collected, assembled, or maintained under a law or
                     A. Background Law                              ordinance or in connection with the transaction of official
                                                                    business” either: (1) “by a governmental body” or (2) “for
The Legislature enacted the Texas Open Records Act in 1973
                                                                    a governmental body and the governmental body owns the
to increase government transparency in the wake of public
                                                                    information or has a right of access to it.” TEX. GOV'T
scandals, including a massive stock-fraud imbroglio known
                                                                    CODE § 552.002(a).
as the Sharpstown scandal. 5 In 1993, the Open Records
Act was recodified without substantive revision as the Texas        7      To claim an exemption, a governmental body must,
Public Information Act. 6 Currently codified in Chapter 552                within ten business days after receiving a request,
of the Texas Government Code, the TPIA's stated policy                     submit a written statement to the Attorney General
objectives are to provide accountability and transparency                  explaining why the information should be withheld and
in government by establishing mechanisms to foster public                  request an Attorney General opinion. TEX. GOV'T
access to government records. SeeTEX. GOV'T CODE §§                        CODE § 552.301(a), (b). If the Attorney General rules
552.001–.353. Importantly, an entity's disclosure obligations              that the Act does not exempt the information from
under the TPIA hinge on whether it is in fact a “governmental              required disclosure, the governmental body must make
body.”                                                                     it available to the requesting party or seek a judicial
                                                                           determination that the information does not have to be
                                                                           disclosed. Id.§§ 552.3215(e), .324, .325(a); see also City
5       See Act of May 19, 1973, 63rd Leg., R.S., ch.                      of Garland v. Dall. Morning News, 22 S.W.3d 351,
        424, § 1–16, 1973 Tex. Gen. Laws 1112, 1112–18                     356 (Tex.2000). If the governmental body refuses to
        (codified at TEX. REV. CIV. STAT. art. 6252–17a);                  disclose the requested information, the Attorney General
        see generally Mutscher v. State, 514 S.W.2d 905,                   may seek to compel disclosure through a mandamus
        910–11 (Tex.Crim.App.1974) (summarizing events of                  proceeding. TEX. GOV'T CODE § 552.321.
        Sharpstown scandal).
6       Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993
                                                                                     B. Statutory Construction
        Tex. Gen. Laws 583, 986 (codified at TEX. G OV'T
        CODE §§ 552.001–.353).
                                                                     *5 [1] [2] [3] [4] [5] [6] GHP argues that as a private
The TPIA defines a “governmental body” as one of twelve             entity, it is not subject to the TPIA's disclosure requirements
different types of entities. See id.§ 552.003(1)(A). Most of        because it does not qualify as a “governmental body” under
the entities listed in section 552.003(1)(A) are identified quite   the statute's plain language. GHP therefore contends that it
precisely; for example, a “school district board of trustees” is    is entitled to seek the privacy protections typically afforded
statutorily defined as a “governmental body.” Id.§ 552.003(1)       to nongovernmental entities. Determining whether GHP is a
(A)(v). Others are more amorphous, including the section            “governmental body” whose records are subject to disclosure
at issue here, which subjects “the part, section, or portion        under the TPIA presents a matter of statutory construction that
of an organization, corporation, commission, committee,             we review de novo. City of Garland v. Dall. Morning News,
institution, or agency that spends or that is supported in whole    22 S.W.3d 351, 357 (Tex.2000). When interpreting a statute,
or in part by public funds” to the TPIA. Id.§ 552.003(1)(A)         our primary objective is to ascertain and give effect to the
(xii). The crux of our inquiry in this case is the meaning of       Legislature's intent without unduly restricting or expanding



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     7
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

the Act's scope. City of Lorena v. BMTP Holdings, L.P.,          “governmental body” in its contextual environment—as we
409 S.W.3d 634, 641 (Tex.2013). We seek that intent first        are bound to do—reveals that the TPIA applies only to
and foremost in the plain meaning of the text. Id.; see also     entities acting as the functional equivalent of a governmental
Tex. Lottery Comm'n v. First State Bank of DeQueen, 325          body that are “sustained” at least in part, by public funds.
S.W.3d 628, 635 (Tex.2010). “Undefined terms in a statute        In reaching this conclusion, we remain ever mindful of the
are typically given their ordinary meaning, but if a different   statute's liberal-construction clause. But liberal-construction
or more precise definition is apparent from the term's use       objectives do not permit a construction of the Act untethered
in the context of the statute, we apply that meaning.” TGS–      from its statutory moorings.
NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439
(Tex.2011). “However, we will not give an undefined term         Familiar interpretive guides and established canons of
a meaning that is out of harmony or inconsistent with other      construction inform our reading of section 552.003(1)(A)
terms in the statute.” State v. $1,760.00 in U.S. Currency,      (xii). In determining the meaning of “supported ... by public
406 S.W.3d 177, 180 (Tex.2013). Therefore, even if an            funds,” we begin, as we must, with the statute's plain
undefined term has multiple meanings, we recognize and           language. Tex. Lottery Comm'n, 325 S.W.3d at 635. Common
apply only the meanings that are consistent with the statutory   English words frequently have a number of dictionary
scheme as a whole. Id. at 180–81. We only resort to rules        definitions, some quite abstruse and esoteric, others more
of construction or extrinsic aids when a statute's words are     comprehensible and commonplace. See, e.g.,$1,760.00 in
ambiguous. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d      U.S. Currency, 406 S.W.3d at 180–81 (noting that “novelty”
433, 437 (Tex.2009). Finally, in construing the TPIA, we are     has multiple dictionary definitions). Not surprisingly,
mindful of the legislative mandate that the TPIA be “liberally   “supported,” the key term here, is subject to at least
construed in favor of granting a request for information.”       six disparate definitions in its verb form alone, with
TEX. GOV'T CODE § 552.001(b).                                    many of those including more nuanced sub-definitions.
                                                                 SeeWEBSTER'S THIRD NEW INT'L DICTIONARY 2297
As an initial matter, we observe the parties' agreement that     (2002). By reading the term in context, however, we can
GHP is a “governmental body” only if it, or a “part, section,    narrow the universe of possible definitions to the most
or portion” of it “is supported in whole or in part by public    apposite. See TGS–NOPEC Geophysical Co., 340 S.W.3d at
funds.” It is likewise undisputed that GHP receives “public      439.
funds.” 8 The parties disagree, however, on the meaning and
application of the statutory phrase, “supported in whole or       *6 [8] As always, we are cognizant of the “fundamental
in part by.” GHP argues that the TPIA cannot reasonably be       principle of statutory construction and indeed of language
interpreted to apply to privately-controlled corporations that   itself that words' meanings cannot be determined in isolation
perform services under quid pro quo government contracts.        but must be drawn from the context in which they are used.”
According to GHP, the Legislature unambiguously intended         Id. at 441. We must therefore analyze the reasonableness of
“supported in whole or in part by public funds” to identify      each definition in light of the statutory context. See Jaster v.
entities that were created or exist to carry out government      Comet II Const., Inc., 438 S.W.3d 556, 562 (Tex.2014); see
functions and whose existence are maintained in whole or         also R.R. Comm'n v. Tex. Citizens for a Safe Future & Clean
in part with public funds. Conversely, the Attorney General      Water, 336 S.W.3d 619, 628 (Tex.2011) ( “We generally
declares the statutory language ambiguous because it could       avoid construing individual provisions of a statute in isolation
reasonably be read to apply to any contract between the          from the statute as a whole.”). The statute's first contextual
government and a private entity. We agree with GHP.              clue emerges from the words immediately surrounding
                                                                 “supported.” To avoid disharmony with the rest of the statute,
8                                                                “supported” must bear reference to “public funds,” so it
       “Public funds” refers to the “funds of the state or of
                                                                 is clear that non-monetary definitions of “supported” make
       a governmental subdivision of the state.” TEX. GOV'T
                                                                 little sense in context. SeeWEBSTER'S THIRD NEW INT'L
       CODE § 552.003(5).
                                                                 DICTIONARY 921 (2002) (defining “funds” as “available
 [7] “Supported” is an undefined term with multiple and          pecuniary resources”). Applying this limitation, we winnow
varied dictionary definitions. However, only two of the          the field down to two potential meanings for “supported,”
definitions are even remotely possible as applied to the TPIA    both of which are faithful to the statutory context:
and only one of those definitions is reasonable when the
statute is considered as a whole. Reading the definition of


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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

                                                                   supplies to a single state office. See 407 S.W.3d at 781. Every
  (1) to pay the costs of: maintain; to supply with the means      company must expend funds to stay in business; it would be
  of maintenance (as lodging, food or clothing) or to earn or      impossible to conclude that any business compensated for
  furnish funds for maintaining; or                                providing goods or services to a governmental entity pursuant
                                                                   to a quid pro quo contract was not using public funds to
  (2) to provide a basis for the existence or subsistence
                                                                   pay for necessities. Thus, any entity doing business with the
  of: serve as the source of material or immaterial supply,
                                                                   government would be a “governmental body.”
  nourishment, provender, fuel, raw material, or sustenance
  of.
                                                                    *7 “Quid pro quo” means “[a]n action or thing that is
SeeWEBSTER'S THIRD NEW INT'L DICTIONARY 2297                       exchanged for another action or thing of more or less equal
(2002); accordBLACK'S LAW DICTIONARY 1668 (10th                    value.” SeeBLACK'S LAW DICTIONARY 1443 (10th ed.
ed. 2009) (defining the term “support” to mean “[s]ustenance       2009). As the dissent agrees, the Legislature did not intend
or maintenance”). In statutory context, “supported” must thus      for the statute to reach entities involved in quid pro quo
mean sustenance, maintenance, or both.                             transactions with the government, and it is undisputed that a
                                                                   fair reading of the statute cannot countenance such a result.
Another contextual clue derives from the Act's purpose. The        407 S.W.3d at 789. We reject any reading of “supported”
statutory context indicates that all section 552.001(a) entities   that would injudiciously apply public transparency laws
are either the government or its functional equivalent. First,     to private businesses merely because they receive public
the statute provides the public with “complete information         funds under a contract with the government. Accordingly,
about the affairs of government and the official acts of           the “maintenance” definition of “supported” is not textually
public officials and employees.” TEX. GOV'T CODE §                 viable.
552.001(a). The stated purpose of permitting access to this
information is to allow the public to “retain control over the      [9] [10] In contrast, defining “supported” as “sustenance”
instruments they have created.” Id. A reasonable definition of     ensures that only an entity, or its “part, section or portion,”
“supported” must be compatible with this stated purpose. The       whose existence is predicated on the continued receipt of
statute also specially defines the term “governmental body.”       government funds would qualify as a “governmental body.”
In defining that term, the Legislature carefully omitted any       Among the meanings of “sustain” are “to cause to continue;
broad reference to private entities, instead including private     to keep up; to carry or withstand; to nourish; to prevent
entities insofar as they are “supported ... by public funds.”      from sinking or giving way.” SeeWEBSTER'S THIRD
Compare id.withFLA. STAT. § 119.011(2). In light of this           NEW INT'L DICTIONARY 2304 (2002); see alsoBLACK'S
omission, which we presume the Legislature purposefully            LAW DICTIONARY 1676 (10th ed. 2009) (defining
selected, the scope of the term “governmental body,” as            “sustain” to mean “to nourish and encourage”). Applying
applied to private entities, must be filtered through the Act's    this construction, the universe of private entities constituting
purpose and function of allowing access to instrumentalities       governmental bodies is obviously more circumscribed
of government. Thus, the Act only applies to private entities      because only a small segment of private entities could fairly
acting as the functional equivalent of the government. See         be considered to be sustained by the government. To be
TGS–NOPEC Geophysical Co., 340 S.W.3d at 439.                      “sustained” by public funds suggests the existence of a
                                                                   financially dependent relationship between the governmental
Defining “supported” to mean “maintenance” is untenable            body and a private entity or its subdivision redolent of
because doing so risks sweeping any private entity that            that between a parent and child or principal and agent.
received any public funds within the definition of a               Financial dependency need not be absolute, however. Rather,
“governmental body.” See 407 S.W.3d at 781 (citing Tex.            the government could be one of several contributing sources.
Ass'n of Appraisal Dists., Inc. v. Hart, 382 S.W.3d 587,           But sustenance implies that if the government ceased to
591–92 (Tex.App.–Austin 2012, no pet.)). To resurrect the          provide financial support, the entity would be unable to meet
example provided by the court of appeals, if we equate             its financial obligations. Unquestionably, a private entity
“supported” with supplying an entity with a means by which         would qualify under a financially dependent construction of
the entity can pay for necessities, then even a paper vendor       “supported” if it could not pursue its mission and objectives
with hundreds of clients would qualify as a “governmental          without the receipt of public funds, even if that funding
body” merely by virtue of getting paid for selling office          only partially financed the entity's endeavors. In short, an



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            9
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

entity “supported” by public funds would not just receive           *8 First, the statute expressly identifies as a “governmental
government funds; it would require them to operate in whole        body” the governing board of a nonprofit water supply
or in part. 9 If we construe “supported ... by public funds”       or wastewater service corporation that is organized under
in this manner, we must conclude GHP is not “supported”            Chapter 67 of the Texas Water Code and exempt from
by public funds because it receives only a small portion of        ad valorem taxation under the Texas Tax Code. See TEX.
its revenue from government contracts. And even if these           GOV'T CODE § 552.003(1)(A)(ix). A nonprofit corporation
government contracts were eliminated, it could continue to         of this type is authorized to engage in several traditional
operate given the substantial revenue derived from other           governmental functions, such as the right to build and
non-governmental sources. Moreover, GHP could and would            operate water- and waste-treatment facilities and sell water
continue to promote the greater Houston economy to advance         to political subdivisions, private entities, or individuals.
its own interests and those of its more than 2,000 non-            SeeTEX. WATER CODE § 67.002. Additionally, depending
government members. GHP, in sum, does not require public           on the size of the county it serves, a nonprofit water
funds and thus, is not sustained by public funds.                  or waste-water service provider may even establish and
                                                                   enforce “customer water conservation practices” through
9                                                                  the assessment of “reasonable penalties as provided in the
       It is possible, of course, that a portion of a private
                                                                   corporation's tariff.” See id. § 67.011(a)(5), (b). By virtue
       entity could be sustained by public funds even where the
                                                                   of their special powers and privileges, these nonprofit utility
       private entity, as a whole, is not. In such instances, if
       the department or division is sustained by public funds,    operators essentially function as quasi-public corporations
       the division may be subject to the TPIA's disclosure        servicing the public. See Garwood Irr. Co. v. Williams, 243
       obligations. Here, GHP did not segregate funds, and         S.W.2d 453, 456 (Tex.Civ.App.–Galveston 1951, writ ref'd
       it argued that such segregation would be logistically       n.r.e.).
       impossible.
 [11] Because only one definition fits the statutory context,      The second potentially private “governmental body”
we conclude that “supported ... by public funds” must              identified in the statute is a nonprofit corporation eligible
be appropriately defined to only include those entities            to receive federal funding, in the form of block grants,
“sustained” by public funds—thereby ensuring that the statute      for anti-poverty programs at the state level. TEX. GOV'T
encompasses only those private entities dependent on the           CODE § 552.003(1)(A)(xi). Under this federal initiative, a
public fisc to operate as a going concern. Although not            nonprofit may receive funds if it demonstrates “expertise
dispositive, our conclusion is reinforced by the fact that this    in providing training to individuals and organizations
construction of the term “supported” is consistent with the        on methods of effectively addressing the needs of low-
scope and nature of the eleven other types of entities more        income families and communities” through a detailed
clearly described as a “governmental body” in the same             application process. 10 42 U.S.C. § 9913(c)(2) (2012); see
provision. SeeTEX. GOV'T CODE § 552.003(1)(A). The                 alsoOFFICE OF CMTY. SERVS., U.S. DEP'T OF HEALTH
canon of statutory construction known as noscitur a sociis         & HUMAN SERVS., COMMUNITY SERVICES BLOCK
—“it is known by its associates”—holds that the meaning            GRANT STATE AND ELIGIBLE ENTITY TECHNICAL
of a word or phrase, especially one in a list, should be           ASSISTANT SERVICES 16–17(2015) (listing eligibility
known by the words immediately surrounding it. SeeTGS–             requirements). 11 A section 552.003(i)(A)(xi) “governmental
NOPEC Geophysical Co., 340 S.W.3d at 441. We rely on               body” must be “authorized by this state to serve a geographic
this principle to avoid ascribing to one word a meaning so         area of the state.” See TEX. GOV'T CODE § 552.003(1)(A)
broad that it is incommensurate with the statutory context.        (xi). This requirement presupposes that the nonprofit has a
Accordingly, in evaluating the breadth of “supported in whole      close working relationship with the state government. See10
or in part by public funds,” we may consider the scope of          TEX. ADMIN. CODE § 5.211 (requiring an authorized
the enumerated categories preceding it. SeeFiess v. State          nonprofit to submit monthly performance reports to the state
Farm Lloyds, 202 S.W.3d 744, 750–51 (Tex.2006). Of the             agency monitoring the program).
eleven other examples of a “governmental body” listed in the
statutory definition of the term, two stand out as arguably the    10     The federal program is codified at 42 U.S.C. §§
most analogous to a private nonprofit like GHP. Thus, we
                                                                          9901-9926 (2012) and is administered by the U.S.
briefly consider each in comparison.




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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

       Department of Health and Human Services Office of                         remaining informed so that they may retain control
       Community Service. See42 U.S.C. § 9912 (2012).                            over the instruments they have created.”
                                                                               Jackson v. State Office of Admin. Hearings, 351
11     Available at http://www.acf.hhs.gov/grants/open/foa/                    S.W.3d 290, 293 (Tex.2011) (citations omitted).
       files/HHS-2015-ACF-OCS-ET-1007_1.pdf.
                                                                      *9 [13] In sum, we define “supported in whole or in part
The foregoing examples describe ostensibly private entities          by public funds” to include only those private entities or
deputized by the government to provide services traditionally        their sub-parts sustained, at least in part, by public funds,
considered governmental prerogatives or responsibilities.            meaning they could not perform the same or similar services
Thus, although nominally private, each is in fact acting             without the public funds. If GHP (as a private entity that
as a quasi-public entity performing a core governmental              receives government funds even while not being supported
function. There is a significant difference between an entity        by them) presents the hard case, entities on the ends of the
of this nature and one like GHP, and our construction of             spectrum—those that receive no government money, and
“supported in whole or in part by public funds” reflects as          those that receive only government money—will obviously
much by capturing only those entities acting as the functional       present much more straightforward questions. Determining
equivalent of the government. See Fiess, 202 S.W.3d at 751.          whether a partially funded entity qualifies as a “governmental
                                                                     body” will likely require case-specific analysis and a close
 [12] Our construction of the term “supported” remains               examination of the facts. Nonetheless, we recognize as a
faithful to the TPIA's liberal-construction clause. See TEX.         general proposition that an entity, like GHP, that does not
GOV'T CODE § 552.001(b) (“This chapter shall be liberally            depend on any particular revenue source to survive—public
construed in favor of granting a request for information.”).         or private—is not sustained even in part by government funds.
We have consistently recognized this clause expresses an
important statement of legislative purpose, and we continue
to adhere to it today. See, e.g.,City of Garland, 22 S.W.3d
at 364 (“Unlike the [Freedom of Information Act], our                                   C. Other Jurisdictions
Act contains a strong statement of public policy favoring
                                                                     While our construction of the TPIA is supported by a
public access to governmental information and a statutory
                                                                     plain-meaning reading of the statute, an examination of
mandate to construe the Act to implement that policy and to
                                                                     similar open-records statutes from other jurisdictions is also
construe it in favor of granting a request for information.”).
                                                                     instructive. In states where open-records acts apply to entities
Still, even a liberal construction must remain grounded
                                                                     “supported in whole or in part by public funds,” our sister
in the statute's language and cannot overwhelm contextual
                                                                     courts have unanimously construed the phrase to exclude,
indicators limiting public intrusion into the private affairs of
                                                                     as a general matter, private entities receiving public funds
nongovernmental entities. 12                                         pursuant to quid pro quo agreements without regard to
                                                                     whether such an agreement is the entity's only funding
12     There is little to support the view that open-records laws    source. See, e.g.,Indianapolis Convention & Visitors Ass'n,
       were envisioned as tools to pry open the sensitive records    Inc. v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 214
       of private entities or to function as a private discovery     (Ind.1991) (“In situations involving a quid pro quo, that is,
       tool. See N.L.R.B. v. Robbins Tire & Rubber Co., 437          measured goods or services given in exchange for payment
       U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978)           based on identifiable quantities of goods or services, a private
       (describing the Freedom of Information Act). Instead, we
                                                                     entity would not be transformed into a public entity because
       have recognized:
                                                                     it would not be maintained and supported by public funds.”);
             The Texas Legislature promulgated the TPIA
                                                                     Weston v. Carolina Research & Dev. Found., 303 S.C.
             with the express purpose of providing the
             public “complete information about the affairs of
                                                                     398, 401 S.E.2d 161, 165 (1991) (“[T]his decision does not
             government and the official acts of public officials    mean that the [open-records act] would apply to business
             and employees.” The Act is aimed at preserving          enterprises that receive payment from public bodies in return
             a fundamental tenet of representative democracy:        for supplying specific goods or services on an arms length
             “that the government is the servant and not the         basis.”); Adams Cnty. Record v. Greater N.D. Ass'n, 529
             master of the people.” At its core, the TPIA reflects   N.W.2d 830, 836 (N.D.1995) (“When there is a bargained-
             the public policy that the people of Texas “insist on   for exchange of value, a quid pro quo, the entity is not
                                                                     supported by public funds.”). Additionally, even in those



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              11
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

states whose open-records acts fail to define “governmental       controlled corporation” and subject to FOIA disclosure
body” or an equivalent term, our sister courts still narrowly     requirements only if the private entity is also subjected to
construe the statute to include only private entities that have   “extensive, detailed, and virtually day-to-day supervision” by
a relationship so intertwined with the government that they       the government. Forsham v. Harris, 445 U.S. 169, 180, 100
are the “functional equivalent of a governmental agency.”         S.Ct. 977, 63 L.Ed.2d 293 (1980). The federal supervision
Memphis Publ'g Co. v. Cherokee Children & Family Servs.,          must be “substantial ... and not just the exercise of regulatory
Inc., 87 S.W.3d 67, 78–79 (Tenn.2002); see also State ex rel.     authority necessary to assure compliance with the goals of
Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 854         the federal grant.” Id. at 180 n.11, 100 S.Ct. 977. Thus,
N.E.2d 193, 198–99 (2006).                                        narrowly defining “supported in whole or in part by public
                                                                  funds” under Texas law is consistent with the approach of
Recognizing the right of private businesses to conduct their      other jurisdictions featuring similar acts and the United States
affairs autonomously, at least one court has adopted a            Supreme Court's interpretation of the federal act on which the
presumption that a private entity is not subject to an open-      TPIA is based.
records request absent clear and convincing evidence that the
private entity is the functional equivalent of a governmental
body. See, e.g.,State ex rel Oriana House, Inc., 854 N.E.2d
                                                                                   D. Response to the Dissent
at 200. In Florida, the only state whose statute expressly
includes private entities, the Florida Supreme Court narrowly      [14] We briefly address some of the contentions in the
interpreted its open-records act to exclude private entities      dissenting opinion. Regarding statutory construction, there is
merely providing professional services to a governmental          little disagreement about the guiding principles and relevant
body. See News & Sun–Sentinel Co. v. Schwab, Twitty &             canons involved here, and we agree, of course, that the canon
Hanser Architectural Group, Inc., 596 So.2d 1029, 1031            of noscitur a sociis“cannot be used to render express statutory
(Fla.1992) (construing FLA. STAT. § 119.011(2)). In fact, of      language meaningless.” Op. at –––– (Boyd, J., dissenting).
those states with similar statutes, we have not encountered       We disagree as to the proper implementation of the canon,
one that has construed an open-records act to include a private   however. The dissent asserts that the first eleven definitions
entity providing specific and measurable vendor services to a     of “governmental body” in the TPIA should be cabined off
governmental body, even if that entity receives public funds.     from the twelfth definition of that term because the twelfth
We find it difficult to ignore this interpretative uniformity,    definition “uses specific language, inherently different than
especially considering the gravitas of the interests at stake.    the language of the other definitions.” Id. at ––––. The dissent,
                                                                  thus, argues that the nature of the first eleven definitions
 *10 Our plain-meaning construction also comports with            cannot inform the twelfth. We disagree. All twelve are
federal precedent interpreting the federal analogue—the           definitions of governmental bodies, and given that the twelfth
Freedom of Information Act (FOIA). See Tex. Comptroller           definition is the most open-ended, blinders would be required
of Pub. Accounts, 354 S.W.3d at 342 (noting that because          to construe it in isolation from its statutory predecessors.
the Legislature modeled the TPIA on the FOIA, federal             Separating the definitions in this way would not only be
precedent is persuasive in construing the Act). Under the         artificial, it would also deprive us of a key source of insight
FOIA, “agency,” the federal equivalent of “governmental           into the parameters of the more expansive twelfth definition.
body,” is defined to include:
                                                                  More significant, however, is the dissent's suggestion that
            any executive department, military
                                                                  the statute is ambiguous. The dissent, building on this
            department, Government corporation,
                                                                  imprudent reading, would look to Attorney General decisions
            Government controlled corporation, or
                                                                  and the Kneeland test for “further guidance.” Id. at ––––.
            other establishment in the executive
                                                                  In canvassing the landscape of informal Attorney General
            branch of the Government (including
                                                                  rulings and divining instruction therefrom, the dissent
            the Executive Office of the President),
                                                                  resurrects Kneeland 's questionable methodology, which did
            or any independent regulatory agency.
                                                                  the same. And as that court itself noted, even if “[o]ne
5 U.S.C. § 552(f)(1) (2012). In interpreting this broad           may have no quarrel with the formulae,”“the direction
language, the United States Supreme Court held that a private     given is a mite uncertain.” Kneeland, 850 F.2d at 228. The
entity receiving federal funding is considered a “government      dissent finds Kneeland “persuasive” but we do not reach



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            12
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

that analysis because of our determination that the statutory          visit target companies and pitch them on the City's business
language unambiguously excludes GHP from qualifying as                 advantages. These services are specific and measurable and
a “governmental body.” Nonetheless, we think it worth                  are the sort of quid pro quo exchanges typical of a vendor
brief pause to note Kneeland 's questionable foundation,               services contract in that industry.
as it—along with the raft of informal Attorney General
rulings that bookend the decision—constitute the “forty                Thus, we do not believe that the monetary payments due to
years of legal interpretations” that we supposedly ignore              GHP under the 2007 and 2008 agreements are “general or
in today's opinion. 13 Slip Op. at 3 (Boyd, J., dissenting).           unrestricted payment[s] provided to subsidize or underwrite
But many of these rulings were informal and, as such                   the entity's activities” rather than “specific measurable
lack any precedential value. Put simply, the weight of this            services.” Id. at ––––. Even the dissent admits that some—but
legal authority is considerably less august than the dissent's         not all—of GHP's activities qualify as “specific measurable
formulation implies.                                                   services,” so the disagreement here is more a matter of degree
                                                                       than anything else.
13     The Kneeland test gained prominence by happenstance
                                                                       The dissent's revised test would also require that “the funds
       rather than design. It derived from a single federal district
                                                                       be intended to promote a purpose, interest, or mission that
       court opinion based on five conclusory Attorney General
       opinions written without any attempt to construe the            the governmental and private entities share and would both
       statutory language. After Kneeland issued, the Attorney         pursue even in the absence of their contractual relationship.”
       General adopted the test without further analysis.              Id. at ––––. The dissent posits that a law firm may share
       Thereafter, the lower courts used the Kneeland test             a broad goal with a client, but the firm's interest remains
       out of deference to the Attorney General, also without          “transaction specific” in a way that GHP's engagement is
       scrutinizing the test in light of the statutory text and        not. Id. at ––––. At the risk of quibbling, we dispute that
       legislative intent embodied therein. We decline to defer        this metaphorical dividing line is nearly that clear or marked.
       to a test created without consideration of the statutory        Many law firms are hired not merely for a specific litigation
       language.                                                       matter but rather to provide more enduring and wide-ranging
 *11 While the dissent purports to rehabilitate Kneeland,              counsel. And more importantly, while the dissent takes
its revised test is at best a partial improvement. The revised         for granted that GHP and the City's interests are perfectly
test makes it virtually impossible for an entity that provides         aligned (and presumably always will be), that assumption
intangible deliverables, such as consulting, advertising, or           is debatable. For instance, although the vast majority of
legal services, to satisfy the “specific and measurable                cities presumably welcome financial investment, growth
services” prong of the test. The dissent portrays GHP as               can prove politically divisive—just witness the debates
sharing only broad, amorphous goals with the City. Yet,                over gentrification that grip many major cities experiencing
the “broad” contract language referenced by the dissent                explosive economic expansion. Regardless, the point is that
actually refers to GHP's more general overarching objectives           GHP is hardly the auxiliary and mirror of the City that the
(essentially, these statements of objectives function as               dissent portrays it to be, and the proposed revision of the
titles under which specific obligations of the contract are            Kneeland test will not significantly clarify this confused area
delineated). Each broad objective is followed by a list                of the law.
of specific services GHP promised to provide to achieve
those objectives. For example, GHP was hired “to identify               [15] The dissent also contends that “the Court writes the
new business opportunities, secure economic incentives and             words ‘in part’ completely out of the statutory definition.”
increase outreach and recruitment activities to the region's           Id. at ––––. Nothing so drastic is occurring here. The
targeted key industries to strengthen the City of Houston              statute's “in part” language may envision a multi-division
as a competitive place to do business.” In furtherance of              entity that does business with the government, but not
that objective, GHP is contractually obligated to develop              uniformly and not across all units. For instance, one can
business relationships with the top twenty-five companies not          conceptualize a subdivision of a large corporation wholly
currently headquartered in the City; create and implement              funded by government contracts; nevertheless, because the
a business-retention program to provide quick responses to             subdivision is only a small part of the large organization, the
companies in the City; and arrange and host ten recruiting             government business forms a relatively small portion of the
trips, or “Signature Events,” for Houston-based executives to          corporation's total revenue. In this scenario, the organization



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               13
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

may be said to be supported “in part” by public funds.             Applying the TPIA's plain and unambiguous language, we
Moreover, there may be more overlap between “in part”              hold that GHP is not “supported in whole or in part by
and the neighboring statutory language than the dissent            public funds” and thus is not a “governmental body” under
allows. While we generally attempt to avoid treating statutory     the TPIA. Because the relevant provisions of the TPIA
language as surplusage, “there are times when redundancies         are unambiguous, we do not apply the analysis outlined in
are precisely what the Legislature intended.” In re Estate of      Kneeland v. National Collegiate Athletic Ass'n, 850 F.2d 224
Nash, 220 S.W.3d 914, 917–18 (Tex.2007); see also In re            (5th Cir. 1988), nor any other extra-textual construct. We
City of Georgetown, 53 S.W.3d 328, 336 (Tex.2001) (noting          therefore reverse the court of appeals' judgment and render
that statutory redundancies may mean that “the Legislature         judgment for Greater Houston Partnership.
repeated itself out of an abundance of caution, for emphasis,
or both”). Regardless of whether such drafting caution is at
work here, the point remains that there are a host of possible
                                                                   JUSTICE BOYD filed a dissenting opinion, in which
explanations addressing the dissent's concerns.
                                                                   JUSTICE JOHNSON and JUSTICE WILLETT joined.


                                                                   JUSTICE BOYD, joined by JUSTICE JOHNSON and
                       III. Conclusion
                                                                   JUSTICE WILLETT, dissenting.
 *12 Amidst all the argument attempting to classify GHP as a       Forty-two years ago, the Texas Legislature passed what has
governmental body, it is worth recalling precisely what GHP        become “widely regarded as the strongest and most successful
is not: GHP is not a government agency, nor is it a quasi-         open government law in the country.” 1 Just three years
public agency specifically listed under the Texas Government       later, in this Court's first opinion addressing the new Texas
Code as a “governmental body.” GHP does not rely on its            Open Records Act, 2 we confirmed that it is the Legislature's
government contracts to sustain itself as a going concern;         policymaking role to balance “the public's right of access”
as all parties acknowledge, the government funds it receives       against “potential abuses of the right,” and the Court's role is
constitute a relatively minuscule portion of GHP's annual          merely “to enforce the public's right of access given by the
budget. The only way GHP can qualify as a “governmental            Act.” Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540
body,” then, is if it can be said to be “supported in whole or     S.W.2d 668, 675 (Tex.1976). Balancing these interests, the
in part by public funds.”                                          Legislature decided that the Act should apply to “the part,
                                                                   section, or portion” of any “organization [or] corporation ...
GHP, like countless chambers of commerce nationwide,               that is supported in whole or in part by public funds.” TEX.
provides marketing, consulting, and event-planning services        GOV'T CODE § 552.003(1)(A)(xii). That may be bad policy,
to the City and other clients pursuant to quid pro quo             or it may be good policy, but it is the policy of Texas, and this
contracts. Like the lobbying shops and law firms that also         Court's only task is to enforce it.
populate the State payroll, GHP shares many common
objectives with the City, but without more, such shared            1       City of Dall. v. Abbott, 304 S.W.3d 380, 395
interests can hardly transform a service provider into
                                                                           n.5 (Tex.2010) (Wainwright, J., dissenting); see
a government appendage. A private entity engaged in                        alsoCHARLES L. BABCOCK ET AL., OPEN
economically delicate work should not be subjected to                      GOVERNMENT GUIDE: OPEN RECORDS AND
invasive disclosure requirements merely because it counts                  MEETINGS LAWS IN TEXAS 1–2 (6th ed. 2011)
the government as one client among many. Transparency                      (describing Texas Public Information Act as “among the
is a real concern, to be sure, and the TPIA's liberal-                     strongest in the nation” and “among the most liberal
construction mandate reflects the depth of this interest. But              in the United States”), available at http://www.rcfp.org/
liberal construction is not tantamount to boundless reach. Yet,            rcfp/orders/docs/ogg/TX.pdf.
even if not directly subject to disclosure obligations under the   2       Act of May 19, 1973, 63d Leg., R.S., ch. 424, 1973 Tex.
TPIA, GHP's transactions with the government are hardly in
                                                                           Gen. Laws 1112–18 (codified at TEX. REV. CIV. STAT.
a black box; the City—which is indisputably a “governmental                art. 6252–17a). In 1993, the Legislature codified the Act
body”—must disclose information regarding its contractors,                 in the Texas Government Code and renamed it the Texas
including GHP.                                                             Public Information Act. Act of May 4, 1993, 73d Leg.,
                                                                           R.S., ch. 268, § 1, secs. 552.001–.353, 1993 Tex. Gen.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               14
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

        Laws 583, 594–607 (codified at TEX. G OV'T CODE §§          at issue, and the evidence here regarding the Partnership and
        552.001–.353).                                              its support.
 *13 To enforce the Legislature's policy choice in this case,
we must decide what it means for a “part, section, or portion”
                                                                    A. Requirements of the Act
of a corporation to be “supported in whole or in part by public
funds.” See id. The Court adopts the narrowest construction         The Public Information Act requires the “officer for public
possible, identifying two requirements that appear nowhere in
                                                                    information of a governmental body” 3 to “promptly produce
the statute's language. The Court's all-or-nothing construction
                                                                    public information” upon request. TEX. GOV'T CODE §
is irreconcilable with the provision's express inclusion of a
                                                                    552.221(a). “Public information” means information “that is
“part, section, or portion” of an entity that is “supported in
                                                                    written, produced, collected, assembled, or maintained under
whole or in part by public funds.” See id.(emphasis added).
                                                                    a law or ordinance or in connection with the transaction of
Striving to be faithful to the Act's plain language, mindful
                                                                    official business,” either (1) “by a governmental body;” (2)
of its express mandate that courts construe it liberally in
                                                                    “for a governmental body” if the governmental body
favor of access to information, and respectful of the many
                                                                    owns the information, has a right of access to it, or
prior decisions of the Texas Attorneys General charged with
                                                                    “spends or contributes public money for the purpose of
interpreting and enforcing the Act, I would hold that a “part,
                                                                    writing, producing, collecting, assembling, or maintaining the
section, or portion” of a private organization or corporation
                                                                    information;” or (3) “by an individual officer or employee of
is “supported in whole or in part by public funds” and thus a
                                                                    a governmental body in the officer's or employee's official
“governmental body” if it (1) receives public funds, (2) not as
                                                                    capacity and the information pertains to official business
compensation or consideration paid in exchange for “specific
                                                                    of the governmental body.” Id.§ 552.002(a). “Information
goods” or “specific measurable services,” but as a general or
                                                                    is in connection with the transaction of official business
unrestricted payment provided to subsidize or underwrite the
                                                                    if the information is created by, transmitted to, received
entity's activities, and (3) those activities promote a purpose,
                                                                    by, or maintained by an officer or employee of the
interest, or mission that the governmental and private entities
                                                                    governmental body in the officer's or employee's official
share and would each pursue even in the absence of their
                                                                    capacity, or a person or entity performing official business or
contractual relationship. Because the evidence establishes all
                                                                    a governmental function on behalf of a governmental body,
three of these elements in this case, I would hold on this record
                                                                    and pertains to official business of the governmental body.”
that the Greater Houston Partnership is a governmental body.
                                                                    Id.§ 552.002(a-1).
Because the Court holds otherwise, I respectfully dissent.

                                                                    3      An “officer for public information” is the governmental
                                                                           body's chief administrative officer (or, in the case of a
                               I.                                          county, an elected county officer), and the head of each
                                                                           department within the governmental body is the officer's
                                                                           agent for purposes of complying with the Act. TEX.
                         Background
                                                                           GOV'T CODE §§ 552.201–.202.
This case presents a single question of statutory construction:     The Act does not require a governmental body to produce
what does the Texas Public Information Act mean when                public information that is “considered to be confidential by
it refers to a “part, section, or portion” of an entity             law, either constitutional, statutory, or by judicial decision.”
that is “supported in whole or in part by public funds”?            Id. § 552.101. The Act itself provides numerous other
Id. Purporting to rely on “[f]amiliar interpretive guides           exceptions to its disclosure requirement, which include,
and established canons of construction,”ante at ––––, the           among other things, certain personnel records, id. § 552.102,
Court discards over forty years of legal interpretations and        litigation records, id. § 552.103, information that “would
announces a brand new interpretation that, at best, reflects the    give advantage to a competitor or bidder,”id. § 552.104,
Court's concerns instead of the Legislature's language. In light    attorney-client information, id. § 552.107, trade secrets and
of the Court's analysis, and to place the issue in perspective,     commercial financial information, id. § 552.110, personal
I begin by highlighting the Act's relevant requirements, the        and family information of governmental employees, id.
reasons for its enactment, prior constructions of the language      § 552.117(a), and “information [that] relates to economic
                                                                    development negotiations involving a governmental body



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               15
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

and a business prospect that the governmental body seeks                 TEX. , www.texasattorneygeneral.gov/opinion/about-
to have locate, stay, or expand in or near the territory of              attorney-general-opinions (last visited June 22, 2015).
the governmental body,”id. § 552.131(a). The Act does not                In addition, the Public Information Act authorizes and
allow a governmental body to unilaterally decide for itself              requires the Attorney General to issue a “decision,”
                                                                         in the form of a “written opinion,” announcing
whether it can withhold requested information. Instead, a
                                                                         whether a governmental body may withhold information
governmental body that wishes to withhold information in
                                                                         in response to a request under the Act. TEX.
response to a request must ask the Attorney General to
                                                                         GOV'T CODE §§ 552.301(a), .306(a), (b). Pursuant
decide whether the information fits within one of the Act's
                                                                         to this authority, Attorneys General sometimes issue
exceptions. Id.§ 552.301(a).                                             “open records decisions,” which “are formal opinions
                                                                         relating to the Public Information Act” that “usually
 *14 It is difficult to overstate the Attorney General's role            address novel or problematic legal questions and are
in this process. The Act assigns to the Attorney General the             signed by the Attorney General.” See Open Records
duty to “maintain uniformity in the application, operation,              Decisions (ORDS),OFFICE OF THE ATT'Y GEN. OF
and interpretation” of the Act and authorizes the Attorney               TEX. , www.texasattorneygeneral.gov/og/open-records-
General to “publish any materials, including detailed and                decisions-ords (last visited June 22, 2015). These
comprehensive written decisions and opinions, that relate                decisions are named numerically using the initials
to or are based on this chapter.” Id. § 552.011. Upon                    “ORD” as a prefix. See id. More often, Attorneys General
                                                                         have resolved open records questions by issuing “open
receipt of a governmental body's request for a decision,
                                                                         records letter rulings,” which “[u]nlike Open Records
the Attorney General considers comments and arguments
                                                                         Decisions, [are] informal letter rulings ... applicable
from any interested person, id. § 552.304(a), and then must
                                                                         only to the specific documents and circumstances
“promptly render a decision” on whether the requested                    surrounding them[.]” See Open Records Letter Rulings
information is within one of the Act's exceptions, id.§                  (ORLs),OFFICE OF THE ATT'Y GEN. OF TEX. ,
552.306(a); see also id.§ 552.306(b) (requiring the Attorney             www.texasattorneygeneral.gov/open/index_orl.php (last
General to issue “a written opinion” and provide a copy                  visited June 22, 2015). These rulings are named
to the requestor). Through its Open Records Division, the                numerically using the initials “OR” and the year of
Attorney General's Office issues thousands of open records               issuance as a prefix. See id. Through the years, Texas
letter rulings every year, including more than 23,000 in 2014,           Attorneys General have utilized all three methods to
                                                                         address open records issues, including the issue of what
and it is on pace to surpass that number this year. 4 If
                                                                         constitutes a “governmental body” under the Act.
a governmental body fails to request an Attorney General
decision when and as required, the requested information “is      If a governmental body refuses to request an Attorney
presumed to be subject to required public disclosure and must     General decision or refuses to produce public information
be released unless there is a compelling reason to withhold       or information that the Attorney General has determined
the information.” Id. § 552.302.                                  is public and not excepted from disclosure, the Attorney
                                                                  General or a requestor may file suit for a writ of
4                                                                 mandamus compelling the governmental body to make
       See Open Records Letter Rulings (ORLs),OFFICE
                                                                  the information available. Id.§ 552.321. Conversely, a
       OF      THE     ATT'Y      GEN.       OF      TEX.     ,
       www.texasattorneygeneral.gov/open/index_orl.php (last      governmental body may file suit against the Attorney
       visited June 22, 2015). Texas law authorizes the           General, seeking declaratory relief from compliance with the
       Attorney General to announce legal determinations in       Attorney General's decision. Id. § 552.324(a). In that suit,
       various forms. The Government Code, for example,           however, a governmental body can only rely on exceptions
       authorizes the Attorney General to provide “a written      it asserted when it requested the Attorney General's decision,
       opinion” to certain governmental officials addressing      unless the exception is based on a federal law requirement or
       “a question affecting the public interest or concerning    involves another person's property or privacy interests. Id. §
       the official duties of the requesting person.” TEX.        552.326(a), (b).
       GOV'T CODE § 402.042(a). The Attorney General's
       determinations under this authority are commonly
                                                                   *15 The Act's requirements apply only to a “governmental
       referred to as “attorney general opinions” and are
                                                                  body,” which the Act defines to mean:
       named numerically using the initials of the issuing
       Attorney General as a prefix. See About Attorney
       General Opinions,OFFICE OF THE ATT'Y GEN. OF



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             16
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

                                                                  The Public Information Act is unique in its extensive
  (i)      a board, commission, department, committee,            explanation of the policies that led to its enactment. As
        institution, agency, or office that is within or is       the Court explains, the Legislature first adopted the Act in
        created by the executive or legislative branch of state   response to the “Sharpstown scandal.” Ante at ––––. The
        government and that is directed by one or more elected    Act begins by expressing the “fundamental philosophy” that
        or appointed members;                                     “government is the servant and not the master of the people”
                                                                  and “the policy of this state that each person is entitled,
  (ii) a county commissioners court in the state;
                                                                  unless otherwise expressly provided by law, at all times to
  (iii) a municipal governing body in the state;                  complete information about the affairs of government and
                                                                  the official acts of public officials and employees.” TEX.
  (iv) a deliberative body that has rulemaking or quasi-          GOV'T CODE § 552.001(a). While the people of Texas
     judicial power and that is classified as a department,       have delegated governing authority to public employees, they
     agency, or political subdivision of a county or              “do not give their public servants the right to decide what
     municipality;                                                is good for the people to know and what is not good for
                                                                  them to know.” Id. Because “[t]he people insist on remaining
  (v) a school district board of trustees;                        informed so that they may retain control over the instruments
                                                                  they have created,” the Act expressly provides that it “shall
  (vi) a county board of school trustees;
                                                                  be liberally construed to implement this policy.” Id. Courts
  (vii) a county board of education;                              must construe the Act's provisions “in favor of disclosure
                                                                  of requested information.” Jackson v. State Office of Admin.
  (viii) the governing board of a special district;               Hearings, 351 S.W.3d 290, 293 (Tex.2011); see also TEX.
                                                                  GOV'T CODE § 552.001(b) (“This chapter shall be liberally
  (ix) the governing body of a nonprofit corporation
                                                                  construed in favor of granting a request for information.”).
     organized under Chapter 67, Water Code, that provides
     a water supply or wastewater service, or both, and is
     exempt from ad valorem taxation under Section 11.30,         C. Prior Constructions of the Act
     Tax Code;
                                                                   *16 Pursuant to their responsibility to “maintain uniformity
  (x) a local workforce development board created under           in the application, operation, and interpretation” of the
     Section 2308.253;                                            Act, TEX. GOV'T CODE § 552.011, Texas Attorneys
                                                                  General have issued numerous opinions addressing whether
  (xi) a nonprofit corporation that is eligible to receive
                                                                  private entities—including several chambers of commerce
     funds under the federal community services block grant
                                                                  and similar organizations—were “supported in whole or in
     program and that is authorized by this state to serve a
                                                                  part by public funds.” Respecting the Attorney General's
     geographic area of the state; and
                                                                  unique role, courts have given deference to Attorney General
  (xii) the part, section, or portion of an organization,         interpretations and applications, most notably the Fifth
     corporation, commission, committee, institution, or          Circuit in Kneeland v. National Collegiate Athletic Ass'n, 850
     agency that spends or that is supported in whole or in       F.2d 224, 228 (5th Cir. 1988).
     part by public funds[.]

Id.§ 552.003(1)(A)(i)–(xii). The question here is whether the     1. Pre-Kneeland Attorney General Decisions
Greater Houston Partnership is “supported in whole or in
                                                                  In 1973, shortly after the Act became effective, the Attorney
part by public funds,” and thus a “governmental body” under
                                                                  General's very first open records decision addressed the
part (xii). “Public funds” means “funds of the state or of a
                                                                  statutory language we address today and concluded that a
governmental subdivision of the state.” Id.§ 552.003(5).
                                                                  private bank was not “supported in whole or in part by
                                                                  public funds” merely because it received and held deposits of
B. Reasons for the Act                                            public funds. Tex. Att'y Gen. ORD–1 (1973). Six years later,
                                                                  the Attorney General concluded that an organization very
                                                                  similar to the Partnership—a private, nonprofit corporation



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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

chartered to promote the interests of the Dallas–Fort Worth        Att'y Gen. Op. No. JM–116 (1983) (quoting Tex. Att'y Gen.
metropolitan area—was a governmental body under the Act.           ORD–228). The conference's constitution stated one of its
Tex. Att'y Gen. ORD–228 (1979). Pursuant to a contract,            purposes was to aid members in incorporating intercollegiate
the City of Fort Worth paid the corporation $80,000 to             athletics within their educational programs and to “place
“[c]ontinue its current successful programs and implement          and maintain such athletics under the same administrative
such new and innovative programs as will further its corporate     and academic control.” Id. The constitution did not identify
objectives and common City's interests and activities” over a      any specific, measurable services that the conference would
three-year period. Id. The Attorney General concluded that,        provide in exchange for the public funds. Id.
by using the phrase “supported in whole or in part,” the
Legislature “did not intend to extend the application of the        *17 The Attorney General later determined that a private
Act to private persons or businesses simply because they           high school and a private nonprofit water supply corporation
provide specific goods or services under a contract with a         were not governmental bodies because neither of them
governmental body.” Id. But this contract did not “impose          received any public funds. Tex. Att'y Gen. Op. Nos. JM–
a specific and definite obligation on the [corporation] to         154 (1984), JM–596 (1986). Then, in 1987, the Attorney
provide a measurable amount of service in exchange for a           General concluded that a volunteer fire department was a
certain amount of money as would be expected in a typical          governmental body under the Act because fire protection is
arms-length contract for services between a vendor and             “traditionally provided by governmental bodies,” volunteer
purchaser.” Id. Thus, not every “contract with a governmental      fire departments have “strong affiliations with public
body causes the records of a private contractor to be open,”       agencies,” and the contract provided the department with
but a private entity is supported by public funds, and is thus a   funds “to carry on its duties and responsibilities,” which
“governmental body,” when the public funds are “used for the       the Attorney General considered to be for its “general
general support of the [entity] rather than being attributable     support.” Tex. Att'y Gen. Op. No. JM–821 (1987). The
to specific payment for specific measurable services.” Id.         Attorney General stated that the “test” for whether an entity
                                                                   is a governmental body under the Act “cannot be applied
Three years later, the Attorney General relied on ORD–228 to       mechanically” and that the “precise manner of funding is not
find that another chamber-of-commerce-like organization—           the sole dispositive issue.” Id. Instead, the Attorney General
a private, nonprofit entity created to promote manufacturing       considered “[t]he overall nature of the relationship,” and
and industrial development in the Bryan area—was a                 concluded “a contract or relationship that involves public
governmental body because the City of Bryan's contractual          funds and that indicates a common purpose or objective or
payment of $48,000 was like an “unrestricted” grant,               that creates an agency-type relationship” will bring the private
rather than payment for specific measurable services. Tex.         entity within the Act's definition of governmental body. Id.
Att'y Gen. ORD–302 (1982) (noting that the situation was
“virtually identical” to that in ORD–228). That same year,
the Attorney General concluded that a private medical              2. Kneeland v. NCAA
service provider for the Amarillo Hospital District was not a
                                                                   In 1988, the Fifth Circuit was asked whether the National
governmental body under the Act because the parties' contract
                                                                   Collegiate Athletic Association (NCAA) and the former
prescribed specific measurable services, including ambulance
                                                                   Southwest Conference (SWC), which received public funds
services, for which the provider received a monthly sum
                                                                   from several Texas public universities, were “supported in
“equal to the difference between cash receipts and approved
                                                                   whole or in part by public funds” and thus “governmental
operating expenditures of the ambulance service.” Tex. Att'y
                                                                   bodies” under the Act. Kneeland, 850 F.2d at 228. In
Gen. ORD–343 (1982).
                                                                   addressing this issue, the Court expressly based its analysis
                                                                   on the Attorneys General's prior decisions, noting that
The following year, the Attorney General determined
                                                                   “[t]he usual deference paid to formal opinions of state
that a proposed athletic conference consisting of member
                                                                   attorneys general is accentuated in this case because the
universities would be a governmental body under the Act
                                                                   Texas Legislature has formally invited its Attorney General
because each university would pay an upfront “membership
                                                                   to interpret the Act when asked to do so.” Id. at 228–
fee” and subsequent annual fees that would be used for the
                                                                   29. Construing the statute's language and extrapolating
conference's “general support ... rather than being attributable
                                                                   principles from the Attorneys General's decisions, the Court
to specific payments for specific measurable services.” Tex.
                                                                   cobbled together the following criteria—now known as the


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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

“Kneeland test”—for determining whether a private entity is       the San Antonio Chamber of Commerce to coordinate the
“supported ... by public funds” and thus a governmental body      annual Fiesta celebration was not a governmental body.
under the Act:                                                    Tex. Att'y Gen. ORD–569 (1990). The city designated the
                                                                  commission as its “official agency” responsible for planning,
  • “The Act does not apply to ‘private persons or businesses     coordinating, and financially supporting the festival and gave
     simply because they provide specific goods or services       the commission the right, subject to necessary approvals,
     under a contract with a government body.’ ” Id. at 228       to lease city-owned premises, obtain permits for parades
     (quoting Tex. Att'y Gen. ORD–1).                             and concession stands along parade route, grant permission
                                                                  to place seating along parade route, and assign its permit
  • “[A]n entity receiving public funds becomes a
                                                                  and lease rights to other entities sponsoring the event.
    governmental body under the Act, unless its relationship
                                                                  Id. The Attorney General nevertheless concluded that the
    with the government imposes ‘a specific and definite
                                                                  commission was not a governmental body because it did
    obligation ... to provide a measurable amount of service
                                                                  not receive any public funds. Id. (“The threshold question is
    in exchange for a certain amount of money as would be
                                                                  whether the commission receives any funds from the City of
    expected in a typical arms-length contract for services
                                                                  San Antonio.”). The Attorney General rejected the argument
    between a vendor and purchaser.’ ”Id. (quoting Tex.
                                                                  that money the commission received from the sale of tickets
    Att'y Gen. Op. No. JM–821, which quotes Tex. Att'y
                                                                  for seating along the parade route was “public funds” because
    Gen. ORD–228).
                                                                  the money would otherwise have been paid to the city. Id.
  • “[A] contract or relationship that involves public funds      (“By requiring the commission to get a permit for erecting
     and that indicates a common purpose or objective or that     bleachers and limiting the charge per seat, the city is not
     creates an agency-type relationship between a private        granting public funds to the commission, nor do the charges
     entity and a public entity will bring the private entity     for seats constitute funds of the city.”).
     within the ... definition of a ‘governmental body.’ ” Id.
     (quoting Tex. Att'y Gen. Op. No. JM–821).                     *18 In 1992, the Attorney General concluded that the Dallas
                                                                  Museum of Art was a governmental body under the Act,
  • “[S]ome entities, such as volunteer fire departments,         even though it received 85% of its revenue from private
    will be considered governmental bodies if they provide        sources. Tex. Att'y Gen. ORD–602 (1992). The city owned
    ‘services traditionally provided by governmental              some of the artwork at the museum, owned and maintained
    bodies.’ ” Id. (quoting Tex. Att'y Gen. Op. No. JM–821).      the premises housing the museum, and paid the museum's
                                                                  utilities, half of the museum employees' salaries, and a pro
Based on these principles and the Attorneys General's             rata portion of the insurance premiums. Id. The museum
decisions from which they were drawn, the Kneeland court          admitted that it received public funds but argued that it
held that the NCAA and SWC were not governmental bodies           received the funds in exchange for “known, specific, and
under the Act. Id. at 230–31. With respect to the NCAA,           measurable services” as opposed to general support. Id.
the court concluded that the universities “receive[d] a quid      Relying on Kneeland and the prior decisions, the Attorney
pro quo, in sufficiently identifiable and measurable quantities   General disagreed, concluding that while the city received
of services,” in exchange for the public funds they paid          “valuable services in exchange for its obligations” to the
to the NCAA. Id. at 230. Similarly, the court concluded           museum, those “highly specialized, unique services” could
that the SWC provided “specific and guageable services            not be “known, specific, or measurable,” and the city thus
which negate[d] the general support element required for a        instead provided funds for the museum's general support. Id.
governmental body designation.” Id. at 231.                       The Attorney General nevertheless held that the museum was
                                                                  not required to disclose the requested records because only
                                                                  the part of the museum supported by public funds was a
3. Post-Kneeland Attorney General Decisions                       governmental body, and the records related to a collection
                                                                  the museum owned as part of its permanent collection, not to
Attorneys General have had several opportunities to address
                                                                  the part of the museum for which the city provided “direct
the issue since Kneeland, and in doing so have adopted
                                                                  support.” Id. (noting the city's ownership of the building in
the federal court's synopsis of the principles from their
                                                                  which the collection was housed and its payment of a portion
prior decisions. A few years after Kneeland, the Attorney
                                                                  of the overhead expenses was “tangential” and “insufficient
General concluded that a private commission created by


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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

to bring documents relating to the collection within the scope   contract, the [Partnership] has not sufficiently demonstrated
of the act”).                                                    that the nature of the services it provides are known,
                                                                 specific, or measurable.” Id. “Consequently,” the Attorney
Again addressing chamber-of-commerce-type entities, the          General concluded, “the [Partnership's] records concerning
Attorney General conducted a similar analysis in holding         its operations that are directly supported by governmental
that the Arlington Chamber of Commerce and the Arlington         bodies are subject to the Act as public information.” Id.
Economic Development Foundation were governmental                (emphasis added).
bodies under the Act. SeeTex. Att'y Gen. ORD–621 (1993).
The foundation admitted that it received public funds but        In addition to arguing that it was not a governmental body,
argued that it did so in exchange for specific, measurable       the Partnership alternatively relied on the Act's exceptions to
services. Id. The Attorney General disagreed, concluding that    disclosure for certain economic development information and
while the city received “valuable services in exchange for       for certain email addresses. Seeid.; TEX. GOV'T CODE §§
the public funds,” the agreement failed “to impose on the        552.131 (excepting certain information relating to economic
foundation a specific and definite obligation to provide a       development negotiations), 552.137 (excepting certain email
measurable amount of services in exchange for a certain          addresses). The Attorney General agreed in part and disagreed
amount of money, as one would expect to find in a typical        in part, instructing the Partnership to release some but not
arms-length contract.” Id. The Attorney General concluded        all of the documents submitted to the Attorney General for
that the chamber of commerce was also a governmental body,       review. SeeTex. Att'y Gen. OR2004–4221.
even though it received public funds through the foundation
rather than from the city directly. Id.                           *19 In 2007, the Attorney General again relied on Kneeland
                                                                 and the distinction between use of public funds for “general
Eight years later, the Attorney General reached the same         support” as opposed to payment for “specific and measurable
result with respect to the Round Rock Chamber of Commerce,       services” to conclude that a family planning service provider
observing that its contract with the City of Round Rock          that contracted with the Department of State Health Services
neither restricted the chamber's use of the public funds it      was a governmental body under the Act. Tex. Att'y Gen.
received nor imposed any “specific and definite obligation to    OR2007–06167 (2007). Similarly, in 2011, the Attorney
provide a measurable amount of services in exchange for a        General decided that channel Austin, a nonprofit corporation
certain amount of money, as one would expect to find in a        that contracted with the City of Austin “to manage the
typical arms-length contract.” Tex. Att'y Gen. OR2001–4849       equipment, building, resources, and the three channels for
(2001).                                                          Public Access,” received public funds as an “unrestricted
                                                                 grant” for its “general support rather than payment for specific
And a few years after that, the Attorney General held that       services.” Tex. Att'y Gen. OR2011–17967 (2011).
the Greater Houston Partnership itself was a governmental
body under the Act, under a similar analysis. Tex. Att'y         In a 2008 formal opinion, the Attorney General observed,
Gen. OR2004–4221 (2004). The Partnership specified in            consistent with the Kneeland test, that it is sometimes
its request for an Attorney General's ruling that the            significant that the private entity has a “common purpose
requested records related to a project being handled             or objective or one that creates an agency-type relationship”
by a specific part of the Partnership, the Economic              with the governmental entity, or that it performs services
Development Division. At that time, different contracts          “traditionally provided by governmental bodies.” Tex. Att'y
governed the Partnership's relationship with the City of         Gen. Op. No. GA–666 (2008). But the Attorney General
Houston. Examining those contracts' provisions—including         explained that the “primary test” is “whether the entity
one that obligated the Partnership to “support the efforts of    receives public funds for the general support of its activities,
the University of Houston Small [B]usiness Development           rather than using those funds to perform a specific and
Center in the conduct of the Director Business Assistance        definite obligation.” Id. (determining that an association of
Program, designed to assist and promote the efforts of local     appraisal districts, which received membership fees from
businesses and entrepreneurs to form new business ventures       governmental entities in exchange for promoting “effective
or to expand existing business ventures”—the Attorney            and efficient functioning and administration of appraisal
General determined that, “[a]lthough ... the city is receiving   districts in Texas,” was a governmental body). Four years
valuable services in exchange for its obligations under this     later, the Attorney General held that a health services provider



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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

was a governmental body under the Act because the contract        any other reports the Directors request; to produce any non-
language evidenced a “common purpose or objective between         confidential records the City Attorney requires to evaluate the
the health service and the district such that an agency-type      Partnership's compliance with the contract; and to inform the
relationship [wa]s created.” Tex. Att'y Gen. OR2012–11220         City of any claims arising out of the Partnership's failure to
(2012) (considering contract in which the parties agreed “to      pay its employees, subcontractors, or suppliers. The contracts
cooperate to provide services to the residents of Nacogdoches     granted the City “full membership and exclusive benefits
County who are in need of service avoiding duplication of         as a General Partner” of the Partnership, which included
services when possible” and “to refer patients for services,      membership in the Partnership's policy-level committees,
as needed, and in doing so will provide documentation for         but prohibited the City from participating on any of the
patient records when needed”).                                    Partnership's governing boards.

                                                                  The 2008 agreement differs from the 2007 agreement
D. The Partnership's “Support”                                    in several respects. While the 2007 agreement required
                                                                  the Partnership to “implement a program” to increase
With the statute's language and these prior decisions in
                                                                  investments in the Houston area, the 2008 agreement
mind, I turn to the facts at issue here. The Greater
                                                                  required the Partnership to provide “specific, measurable
Houston Partnership is a private nonprofit corporation that
                                                                  services” to increase investments. While the 2007 contract
functions as a chamber of commerce to promote job
                                                                  permitted the City to require the Partnership to terminate
creation, increased trade, and capital investment in the
                                                                  any employee or subcontractor whose work the Directors
greater Houston area. For many years, including 2007 and
                                                                  deemed unsatisfactory, the 2008 contract only required the
2008, the Partnership entered into an annual “Agreement for
                                                                  Partnership to “consider removing” any such employee or
Professional Services” with the City of Houston, in which
                                                                  subcontractor. And unlike the 2007 agreement, the 2008
the Partnership agreed to perform certain marketing, research,
                                                                  agreement stated that the City's payments were solely for
and promotional services designed “to increase investment
                                                                  services rendered and were not intended as general support
in, and to improve the economic prosperity of Houston and
                                                                  for the Partnership's other activities, and expressly provided
the Houston Airport System.” 5 The contracts required that        that nothing in the agreement shall be construed to imply that
the scope of the Partnership's services “support the goals,       the Partnership is subject to the Texas Public Information Act.
visions, and objectives outlined in the Partnership's Strategic
Plan.”(Emphasis added). In exchange for these services, the
                                                                  In May 2008, 6 Houston-area resident Jim Jenkins submitted
City agreed to pay the Partnership a lump sum amount of
                                                                  a Public Information Act request to the Partnership, asking
$196,250.00 per quarter. The City's payments constituted less
                                                                  that it provide him with “a copy of the check register ...
than 8% of the Partnership's total annual revenue, 90% of
                                                                  for all checks [the Partnership] issued for the year 2007,”
which came from dues the Partnership's members paid.
                                                                  including “for each check issued: check number, check date,
                                                                  payee name, and check amount.” Jenkins later submitted a
5      The Local Government Code authorizes municipalities        second request, seeking the same information for all checks
       to contract with private entities like the Partnership
                                                                  the Partnership issued in 2008. The Partnership refused to
       “for the administration of a program” to promote “local
                                                                  provide the requested information, and instead asked the
       economic development and to stimulate business and
                                                                  Attorney General to decide whether the Partnership is a
       commercial activity in the municipality.” TEX. LOC.
                                                                  “governmental body” subject to the Public Information Act.
       GOV'T CODEE § 380.001.
                                                                  The Partnership did not assert that only “a part, section,
 *20 The services agreements specified that the Partnership       or portion” of the Partnership is “supported in whole or
was an independent contractor, but they also gave the City        in part by public funds,” as it had successfully argued in
certain rights to participate in and control some of the          2004. SeeTex. Att'y Gen. OR2004–4221. Nor did it assert
Partnership's activities. Among other things, the Partnership     that any information in the check register was not “public
agreed to coordinate its efforts with the directors of the        information” or that one of the Act's exceptions applied, as
City's Department of Convention & Entertainment Facilities,       it had also asserted in 2004. See id. Instead, the Partnership
Department of Planning and Development, and the Houston           relied solely on its contention that it is not a governmental
Airport System (the Directors); to submit quarterly progress      body under the Act.
reports “describing in detail services performed”; to provide



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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

6       The Partnership and City executed the 2008 services             First, the Partnership contends the phrase “supported ... by
        agreement in August 2008, a few months after receiving          public funds” unambiguously does not include the City's
        Jenkin's first request for information, which may explain       contractual payments to the Partnership. Next, the Partnership
        the differences we have described between the 2007 and          argues, even if the language is ambiguous, the Court should
        2008 agreements.                                                reject the Kneeland test because it is unclear and not
Consistent with its 2004 ruling, the Attorney General's Open            grounded in the statutory language. Third, if the Court does
Records Division ruled that the Partnership is a governmental           adopt the Kneeland test, the Partnership argues it is not
body and must comply with the Act's requirements. Tex.                  “supported ... by public funds” even under that test. The Court
Att'y Gen. OR2008–16062 (2008). The Partnership filed suit              agrees with the Partnership's first argument—that the statute
against the Attorney General to challenge the ruling, and               unambiguously does not apply to the Partnership—but also
Jenkins intervened. The trial court agreed with the Attorney            notes its displeasure with the Kneeland test. I disagree. I
General and held that the Partnership is a governmental body            would hold that the statute is ambiguous, adopt but clarify
under the Act. The Partnership appealed, and the court of               the Kneeland test, and conclude that under that test the
appeals affirmed, with one justice dissenting. 407 S.W.3d               Partnership “is supported in whole or in part by public funds.”
776. We initially denied the Partnership's petition for review,
but we later granted its motion for rehearing and its petition, to
                                                                        A. The Court's Interpretation
address when a private entity may qualify as a governmental
body under the Act.                                                     The Court begins its analysis by noting that the term
                                                                        “supported” can have several different meanings. Ante at
                                                                        __. Because “supported by” in the clause at issue refers
                                  II.                                   specifically to “public funds,” the Court concludes that the
                                                                        Act focuses solely on monetary support. Ante at __. The Court
                                                                        then proceeds to identify two different requirements that must
              “Supported in Whole or In Part”                           each exist for a private entity to receive monetary “support,”
                                                                        which I will refer to as the “sustenance” requirement and the
 *21 The issue here is whether the Greater Houston
                                                                        “functional equivalent” requirement. Ante at ___ (agreeing
Partnership is “supported in whole or in part by public funds”
                                                                        with Partnership's contention that definition only includes
and is thus a “governmental body” under the Act. 7 The                  “entities that were created or exist to carry out government
interpretation of the Act presents questions of law. City               functions and whose existence are maintained in whole or in
of Garland v. Dall. Morning News, 22 S.W.3d 351, 357                    part with public funds”). Although the Court asserts that it is
(Tex.2000). In light of the Act's strong policy in favor of             simply applying a “plain language” approach to construing
disclosure, a party seeking to withhold requested information           the statute, ante at ___, and is not relying on any “extra-textual
bears the burden of proving that the information is not subject         analytical construct,” ante at ___, neither of the Court's two
to disclosure under the Act. See Thomas v. Cornyn, 71 S.W.3d            requirements appears anywhere in the statute's language. I do
473, 488 (Tex.App.–Austin 2002, no pet.)(holding that “a                not agree that the Act's language “unambiguously” supports
governing body should bear the burden of proving in a judicial          the judicial insertion of either requirement into its definition
proceeding that an exception to disclosure applies”).                   of a “governmental body.”

7       Although the Partnership has previously argued that
        requested records related solely to its Economic                1. The “Sustenance” Requirement
        Development Division, seeTex. Att'y Gen. OR2004–
        4221 (2004), it has made no similar effort to identify or       Addressing the first requirement, the Court says “supported”
        limit the Act to any particular sections or divisions in this   can mean (and here must mean) “sustenance, maintenance,
        case. Our issue is therefore whether the Partnership, as a      or both.” Ante at __. The Court provides this as the
        whole, is “supported in whole or in part by public funds,”      “maintenance” definition of “supported”: “to pay the costs
        and not whether any particular “part, section, or portion”      of: maintain; to supply with the means of maintenance (as
        of the Partnership is.                                          lodging, food or clothing) or to earn or furnish funds for
The Partnership makes three arguments as to why it is not               maintaining[.]” Ante at __ (quoting WEBSTER'S THIRD
a “governmental body” under the Public Information Act.                 NEW INT'L DICTIONARY 2297 (2002)). The Court then



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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

concludes that “supported” cannot mean “maintenance” in                 at least in part, by public funds,”ante at __ (emphasis
this context because otherwise the definition would include             added); and
“any private entity that received any public funds,” and “even
a paper vendor with hundreds of clients would qualify as             • “we define ‘supported in whole or in part by public funds'
a ‘governmental body’ merely by virtue of selling office                to include only those private entities or their sub-parts
supplies to a single state office.” Ante at __.                         sustained, at least in part, by public funds,”ante at ___
                                                                        (emphases added).
 *22 In contrast to the “maintenance” definition, the Court
gives this “sustenance” definition of “supported”: “to provide     But despite these lip-service payments to the statute's
a basis for the existence or subsistence of: serve as the source   language, the Court repeatedly holds that an entity (or any
of material or immaterial supply, nourishment, provender,          part, section, or portion of an entity) that receives public
fuel, raw material, or sustenance of.” Ante at __ (quoting         funds as sustenance (as opposed to maintenance) is not a
WEBSTER'S THIRD NEW INT'L DICTIONARY at 2297).                     governmental body unless it cannot survive and pursue its
The Court thus distinguishes between the “maintenance”             mission without those funds:
meaning of “supported” and the “sustenance” meaning of
                                                                     • “defining ‘supported’ as ‘sustenance’ ensures that only an
“supported” and concludes that in the context of the Act,
                                                                        entity, or its ‘part, section or portion,’ whose existence is
“supported by” can only mean the latter, so the Act applies
                                                                        predicated on the continued receipt of government funds
only to private entities “sustained, at least in part, by public
                                                                        would qualify as a ‘governmental body,’ ”ante at __;
funds, meaning they would not perform the same or similar
services without public funds.” Ante at __.                          • “[t]o be ‘sustained’ by public funds suggests the
                                                                       existence of a financially dependent relationship
Although the Court reads far more into these two definitions           between the governmental body and a private entity or
of “support” than I find there, as explained below, I generally        its subdivision,”ante at __;
agree that the term “support” must refer here to monies paid
as general funds to sustain the recipient, rather than funds         • “a private entity would qualify under a financially
paid as consideration for specific goods or services. But the          dependent construction of ‘supported’ if it could not
Court goes far beyond that principle today, and holds that             pursue its mission and objectives without the receipt of
an entity is “supported in whole or in part by public funds”           public funds, even if that funding only partially financed
only if the entity cannot survive without those funds. As a            the entity's endeavors. In short, an entity ‘supported’ by
result, the Court writes the words “in part” completely out            public funds would not just receive government funds; it
of the statutory definition. To be sure, the Court creates the         would require them to operate in whole or in part,”ante
appearance that it is actually enforcing the statute as written        at __;
by referring to the “supported ... in part” language several
                                                                     • “[the Partnership] is not ‘supported’ by public funds
times in its opinion:
                                                                       because it receives only a small portion of its
  • “requires us to decide whether the term ‘supported’                revenue from government contracts[, a]nd even if these
    encompasses private entities ... sustained—in whole or             government contracts were eliminated, it could continue
    in part —by [public] funds,”ante at ___ (emphasis                  to operate given the substantial revenue derived from
    added);                                                            other non-governmental sources,”ante at ___;

  • “ ‘supported’ ... unambiguously includes only                     *23 • “the statute encompasses only those private entities
    those entities at least partially sustained by public              dependent on the public fisc to operate as a going
    funding,”ante at __ (emphasis added);                              concern,”ante at ___; and

  • “[the Partnership] is not wholly or partially sustained by       • “An entity ... that does not depend on any particular
     public funds,”ante at ___ (emphasis added);                       revenue source to survive—public or private—is not
                                                                       sustained even in part by government funds,”ante at __.
  • “the [Act] applies only to entities acting as the functional
     equivalent of a governmental body that are ‘sustained’        The Court thus holds that a private entity that receives public
                                                                   funds can be a governmental body under the Act only if



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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

it cannot “survive” or “exist” or “pursue its mission and            *24 A relevant illustration is this: even if only 5% of
objectives” without those public funds, even if those funds         the funds that support the Court's hypothetical corporate
are just “one of several contributing sources.” I disagree. An      subdivision were public funds, the subdivision would still be
entity that is “sustained” (as the Court uses that word) by         “supported in part ” by those funds, and would thus be a
funds it receives from several different sources is sustained       governmental body under the Act's plain language. An entity
“in part” by the funds from each of those sources, even if it       “supported ... in part by public funds” is a governmental
could survive and pursue its mission without the funds from         body, regardless of whether it could “survive” or “pursue its
any one source. The Court asserts that “sustenance implies          mission” without those funds. See id. The Court's construction
that if the government ceased to provide financial support,         reads this language out of the Act by requiring the whole of
the entity would be unable to meet its financial obligations.”      the entity to live or die by the public fisc.
Ante at ___. But even if that were true, 8 “sustenance in
part ” implies the exact opposite. If “part” of an entity's
                                                                    2. The “Functional Equivalent” Requirement
“sustenance” comes from one source, it is “sustained in part
” by that source even if it could survive without that part.        The Court also holds that an entity is not “supported in
                                                                    whole or in part by public funds” unless it is “acting
8       The Court fails to identify any dictionary that defines     as the functional equivalent of a governmental body,”ante
        “supported” to mean financially dependent upon for its      at __, and providing “services traditionally considered
        very existence. See ante at __. While there are many        governmental prerogatives or responsibilities,”ante at __.
        definitions of “support” that refer to “sustenance or       As with its first requirement, the Court does not derive
        maintenance” or even “a basis for the existence or          this requirement from the statutory definition at issue.
        subsistence of,” see ante at __ (emphasis added), none      Subsection (xii) expressly identifies several types of entities
        of the definitions require an absolute dependence, and
                                                                    that typically are not public (or governmental) entities,
        in any event, the statute's definition expressly excludes
                                                                    including an “organization,” a “committee,” an “institution,”
        such a requirement by referring to support “in part.”
                                                                    and—importantly, here—a “corporation.” The Act says such
The Court attempts to justify its “surviv[al]” requirement          private entities are governmental bodies if they are “supported
by suggesting that the statute's “ ‘in part’ language may           in whole or in part by public funds,” not if they are acting
envision a multi-division entity that does business with the        as the “functional equivalent” of a governmental body or
government, but not uniformly and not across all units.”            performing traditional government responsibilities. TEX.
Ante at ___. “For instance,” the Court explains, if a “large        GOV'T CODE § 552.003(1)(A)(xii). The Court, however,
corporation” has a “subdivision” that “is wholly funded by          asserts three bases for imposing this requirement: (1) the Act's
government contracts,” but the government funds are only “a         “stated purpose”; (2) the statute's omission of “any broad
relatively small portion of the corporation's total revenue,” the   reference to private entities”; and (3) the “scope and nature
corporation “may be said to be supported ‘in part’ by public        of the eleven other types of entities more clearly described
funds.” Ante at ___. This illustration confuses the statute's       as a ‘governmental body’ in the same provision,”ante at __.
reference to “supported in part” with its reference to the “part,   I do not agree that any of these justifies writing the Court's
section, or portion” of an entity. The statute provides that the    “functional equivalent” requirement into the statute.
“part, section, or portion” of an entity is a governmental body
if it is “supported in whole or in part by public funds.” TEX.      First, the Court suggests that requiring a private entity to
GOV'T CODE § 552.003(1)(A)(xii). The Court is correct               be the “functional equivalent” of a governmental body is
that, if one subdivision of a large corporation is “supported       necessary to ensure that our construction of “supported” is
in whole ... by public funds,” then the corporation itself          “compatible with” the Act's “stated purpose.” Ante at ___
is “supported ... in part by public funds.” But the statute         This “stated purpose,” the Court explains, is to provide
permits the corporation to limit the Act's application to the       the public with “complete information about the affairs of
subdivision by showing that only that subdivision (i.e., that       government and the official acts of public officials and
“part, section, or portion” of the corporation) is “supported       employees” to “allow the public to ‘retain control over
in whole or in part” by public funds. The illustration the          the instruments they have created.’ ” Ante at __ (quoting
Court “conceptualize[s]” has nothing to do with the Court's         TEX. GOV'T CODE § 552.001(a)). Although the Court
“surviv[al]” requirement.                                           makes no effort to explain why this purpose necessitates or
                                                                    implies the “functional equivalent” requirement, I presume


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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

the Court finds hidden meaning in the purpose statement's                 string of particularly broad terms to reference private
reference to the “affairs of government,” the “acts of public             entities of all types: “the part, section, or portion of
officials and employees,” and the “instruments... created,”               an organization, corporation, commission, committee,
as if the words I have emphasized exclude any purpose to                  institution, or agency that spends or is supported in whole
                                                                          or in part by public funds[.]”TEX. GOV'T CODE §
require disclosure of information held by a private entity.
                                                                          552.001(1)(A)(xii). The “omission” on which the Court
But to emphasize a different word, the statute's purpose is to
                                                                          relies simply does not exist.
provide “complete information” about those affairs, acts, and
instruments. The Legislature may have believed that the only       For the third (though “not dispositive”) reason for requiring
way to ensure the public has “complete” information about          a private entity to be the “functional equivalent” of a
what their government is doing is to treat some private entities   governmental body, the Court relies on the “canon of
as governmental bodies under the Act. Whatever we may              statutory construction known as noscitur a sociis.” Ante at __.
presume about what the Legislature may have “believed,”            This canon provides “that a word is known by the company
what the Legislature “said” was that “governmental body”           it keeps.” Fiess v. State Farm Lloyds, 202 S.W.3d 744,
includes any entity “supported in whole or in part by public       750 (Tex.2006) (quoting Gustafson v. Alloyd Co., 513 U.S.
funds,” not any entity that is the “functional equivalent” of a    561, 575, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)). It “directs
governmental body.                                                 that similar terms be interpreted in a similar manner,”TGS–
                                                                   NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441
 *25 As a second reason for requiring a private entity to          (Tex.2011), but there is no similarity between the words
be the “functional equivalent” of a governmental body, the         in definition (xii)—an “organization” or “corporation” that
Court asserts that the definition does not include “any broad      is “supported in whole or in part by public funds”—and
                                                                   those in the preceding definitions. If definition (xii) provided
reference to private entities.” Ante at ___. 9 Assuming that the
                                                                   “general” language, following “specific and particularized
Legislature “carefully omitted” any such “broad reference,”
                                                                   enumerations” in the first eleven definitions, then we would
and presuming that the Legislature “purposefully selected”
                                                                   “treat the general words as limited and apply them only to the
this omission, the Court concludes that the definition, “as
                                                                   same kind or class of [things] as those expressly mentioned.”
applied to private entities, must be filtered through the Act's
                                                                   City of San Antonio v. City of Boerne, 111 S.W.3d 22,
purpose and function of allowing access to instrumentalities
                                                                   29 (Tex.2003). But definition (xii) uses specific language,
of government,” and thus “only applies to private entities
                                                                   inherently different than the language of the other definitions,
acting as the functional equivalent of the government.” Ante
                                                                   and thus refers to something specific, not just a catch-all to
at ___. Respectfully, I fail to follow the Court's logic. It
                                                                   conclude the preceding definitions. Under noscitur a sociis,
might be logical to conclude from the omission of any
                                                                   we should look to the words “immediately surrounding”
“broad reference” to private entities that the Legislature did
                                                                   the phrase “supported by,” which include the words “public
not intend to include all private entities as “governmental
                                                                   funds” and, importantly, “in whole or in part ” (which the
bodies.” But it is illogical to conclude that the omission
                                                                   Court ignores). SeeBLACK'S LAW DICTIONARY 1224
of a “broad reference” somehow indicates which private
                                                                   (10th ed. 2014) (defining noscitur a sociis as “a canon of
entities the Legislature intended to include and which it
                                                                   construction holding that the meaning of an unclear word or
did not. And it is simply preposterous to conclude that the
                                                                   phrase, esp. one in a list, should be determined by the words
omission somehow indicates that they intended to include
                                                                   immediately surrounding it”).
“only those entities acting as the functional equivalent of
the government.” Ante at ___. We need not engage in such
                                                                   Even if the Court were applying the doctrine of noscitur a
sophistry, because the statute tells us which private entities
                                                                   sociis correctly here, that doctrine cannot be used to render
the Legislature intended to include as governmental bodies:
                                                                   express statutory language meaningless. “If ... the specific
those that are “supported in whole or in part by public funds.”
                                                                   terms exhaust the class of items enumerated in the statute,
TEX. GOV'T CODE § 552.003(1)(A)(xii). The Court finds
                                                                   it must be presumed that any generic term that follows
support for its judicially created functional equivalent test
                                                                   must refer to items transcending the class, since a contrary
only by manufacturing a “broad reference” to stack upon its
                                                                   construction ‘would contravene the more important rule of
misconstruction of the Act's “stated purpose.”
                                                                   construction that all words are to be given effect.’ ” Shipp v.
                                                                   State, 331 S.W.3d 433, 437 (Tex.Crim.App.2011) (quoting
9      This assertion is simply wrong. The very definition at      2A NORMAN J. SINGER & J.D. SHAMBIE SINGER,
       issue “broadly refers” to private entities by using a



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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

SUTHERLAND STATUTORY CONSTRUCTION § 47:21                         interpretations of Public Information Act are persuasive but
at 390–91 (7th ed.2007)); see also Columbia Med. Ctr. of          not controlling). But I would also clarify the Kneeland test to
Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.2008)        provide greater simplicity and guidance.
(“The Court must not interpret the statute in a manner that
renders any part of the statute meaningless or superfluous.”);
City of San Antonio, 111 S.W.3d at 29 (rejecting construction     1. Ambiguity
that would render some statutory language unnecessary and
                                                                  The Court and the parties agree that not every private
citing Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597,
                                                                  entity that contracts with the government and receives
601 (1915), for the proposition that “[i]t is an elementary
                                                                  payments of public funds is “supported ... by public funds.”
rule of construction that, when possible to do so, effect
                                                                  More specifically, they agree with the Attorneys General's
must be given to every sentence, clause, and word of a
                                                                  conclusion that an ordinary, arms-length transaction between
statute so that no part thereof be rendered superfluous or
                                                                  a private party and a governmental entity does not render
inoperative”). We must “read the statute contextually,” Office
                                                                  the private party a “governmental body” under the Act.
of Att'y Gen., 422 S.W.3d at 629, considering the relevant
                                                                  They agree that something more is required, but they dispute
language in the context of the statute as a whole, rather
                                                                  whether that something is present here. I too agree that
than as “isolated provisions,” TGS–NOPEC Geophysical, 340
                                                                  something more is required, but I conclude that the statute is
S.W.3d at 439, and endeavoring to “giv[e] effect to every
word, clause, and sentence,”In re Office of Att'y Gen., 422       ambiguous as to what that something is. 10
S.W.3d 623, 629 (Tex.2013), so that none of the language
is rendered superfluous, see Crosstex Energy Servs., L.P. v.      10     The Court argues that “governmental body” should not
Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex.2014). Because the              include every single vendor who sells a product or
Court's construction renders the phrase “in whole or in part             service to the government in a quid pro quo transaction,
” meaningless, I do not agree that definition (xii) includes             and cites authority from other jurisdictions to support
“organizations” and “corporations” only if they “function as             this contention. This is, of course, a straw man argument,
                                                                         as everyone in the case agrees that we cannot construe
quasi-public” entities. Ante at ––––.
                                                                         the term that broadly. But merely because one extreme
                                                                         construction is available that would lead to an (arguably)
                                                                         absurd result does not mean that every less extreme
B. A More Accurate Interpretation
                                                                         construction within the range from narrowest to broadest
 *26 If a statute's words are susceptible to two or more                 possible constructions is unreasonable. Moreover, no one
reasonable interpretations, and we “cannot discern legislative           argues that the Partnership is merely an ordinary vendor
                                                                         under the contracts at issue here.
intent in the language of the statute itself,” the statute
is ambiguous, and we may rely on applicable canons of             The phrase “supported by” can have multiple common,
statutory construction. Tex. Lottery Comm'n v. First State        ordinary meanings, including:
Bank of DeQueen, 325 S.W.3d 628, 639 (Tex.2010). I would
conclude that the words “supported by” are ambiguous in             1. To carry the weight of, exp. from below.
this context, and would thus grant deference to the Attorneys
                                                                    2. To maintain in position so as to keep from falling,
General's long-standing construction of the Act's definition
                                                                       sinking, or slipping.
of a “governmental body.” See Combs v. Health Care
Servs. Corp., 401 S.W.3d 623, 629–30 (Tex.2013) (stating            3. To be able to bear: WITHSTAND.
that we grant deference to construction of agency that is
charged with enforcement of statute if statute is ambiguous,        4. To keep from failing or yielding during stress.
agency interpretation results from formal proceedings, and
                                                                    5. To provide for, by supplying with money or necessities.
interpretation is reasonable). Though not controlling, I would
                                                                       <support a large family>
consider the Attorney General constructions to be persuasive,
particularly in light of the responsibility the Legislature has     6. To furnish corroborating evidence for <support a
given the Attorney General for “interpreting” and promoting           witness's testimony>
uniformity in the application of the Act. See TEX. GOV'T
CODE § 552.011; see also City of Dall. v. Abbott, 304 S.W.3d        7. To aid the cause of by approving, favoring, or advocating
380, 384 (Tex.2010) (observing that Attorneys General's                <support for a political candidate>


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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

                                                                     part by public funds” is ambiguous, and thus turn to existing
  8. To endure: tolerate.                                            precedents—and specifically Attorney General decisions and

  9. a. To act (a part or role). b. To act in a secondary or         the Kneeland test—or further guidance. 11
     subordinate role to (a leading performer).
                                                                     11     A statute is ambiguous if two or more plausible
WEBSTER'S II NEW COLLEGE DICTIONARY 1108                                    constructions are reasonable. Tex. Lottery Comm'n,
(1995).                                                                     325 S.W.3d at 639. The Court finds the phrase
                                                                            “supported in whole or in part by public funds”
I agree with the Court that most of these definitions do                    unambiguous, although it suggests that two of the
not apply in this statutory context, which limits “support”                 dictionary definitions (“sustenance” and “maintenance”)
to a function that can be performed by money. See TGS–                      are “remotely possible.” Ante at ––––. The Court pursues
NOPEC Geophysical, 340 S.W.3d at 441 (using statutory                       a backwards approach to the ambiguity analysis: it relies
context to eliminate inapplicable meanings of a word in                     on context, purpose, and canons of construction first to
the statute). An ordinary reader could construe some of                     exclude every possible meaning of the word “supported”
                                                                            except two, then to exclude all but the most narrow
the broader definitions to include financial “support”: e.g.,
                                                                            of those two “possible” definitions, and then declares
public funds could “carry the [financial] weight of” an
                                                                            that the term is “unambiguous” because there's only
entity. SeeWEBSTER'S II NEW COLLEGE DICTIONARY
                                                                            one “reasonable” definition.” I find the term ambiguous
at 1108. In context, the most relatable definition is “[t]o                 because, even in context and considering the statute's
provide for, by supplying with money or necessities.” Id.                   purpose, it is susceptible to more than one reasonable
The Partnership relies on this common meaning and argues                    meaning, and I thus turn to canons of construction and
that, just as a person “pays” an employee but “supports” a                  persuasive authorities for assistance in determining what
family member, the City “paid” rather than “supported” the                  the statute's actual language must mean.
Partnership. But even this definition of “support” does not
resolve the statute's ambiguity because the statute requires         2. A Clarified Kneeland Test
only that the entity be supported “in whole or in part ”
by public funds. TEX. GOV'T CODE § 552.003(1)(A)(xii)                Although this Court has not previously construed the Act's
(emphasis added).                                                    “supported by” language, the Fifth Circuit has in Kneeland,
                                                                     and Attorneys General have since consistently relied on the
 *27 As the Court notes, in the broadest sense, virtually any        Kneeland test as the governing standard. The Partnership
income from public funds could reasonably be considered to           urges us to reject the Kneeland test, asserting that it “has no
“provide for” the Partnership “in part” by supplying it with         basis in the statutory text” and leaves too much uncertainty
money, even if the City pays the money in exchange for               in the law. The Attorney General counters that the Kneeland
specific goods or services rendered. Ante at ––––; see also          test “satisfies the legislature's intent[ ] to shed light on the
Tex. Ass'n of Appraisal Dists., Inc. v. Hart, 382 S.W.3d 587,        affairs of government” and “provides a workable framework
591–92 (Tex.App.–Austin 2012, no pet.)(observing that the            for determining whether an entity is a governmental body
dictionary definitions of “support” are “so broad and varied         under the [Act] because it treats entities functioning as
that any private entity that receives any public funds can be        governmental bodies as such while eliminating vendors
said to be, at least in part, ‘supported’ by those public funds,”    providing goods and services through arms-length contracts
yet all authorities have agreed that “simply receiving public        from the definition.”
funds does not make a private entity a ‘governmental body’
under the [Act]”). The same problem results from the Court's         I would conclude that the Kneeland test and its related
definition of “supported” to mean “to provide a basis for            precedent offer persuasive, though not controlling, legal
the existence or subsistence of.” Ante at ––––. At least “in         authority. See Christus Health Gulf Coast v. Aetna, Inc., 237
part,” the City's payments for chamber-of-commerce services          S.W.3d 338, 343 & n.8 (Tex.2007) (noting that Fifth Circuit
provide a reason for the Partnership's existence and enable          precedent is persuasive but not binding on this Court) (citing
it to “pursue its mission,” and the City's payments for those        Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296
services constitute at least a “part” of the revenue that sustains   (Tex.1993)). The test is founded on deference to the Attorneys
the Partnership. See ante at ––––. I would conclude that the         General's interpretations of the Act, which are likewise
Act's reference to entities that are “supported in whole or in       persuasive but not controlling. See City of Dall., 304 S.W.3d



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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

at 384. The Court complains that the Kneeland test has a           funds” as a result of such transactions, at least as the
“questionable foundation,” noting that even the Kneeland           Act uses that term. Thus, a private entity that receives
court acknowledged that its explanation of its holding was         public funds in exchange for assuming an “obligation to
“a mite uncertain.” Ante at –––– (quoting Kneeland, 850            provide a measurable amount of service in exchange for a
F.2d at 224). But as the Court notes, it is the “direction         certain amount of money as would be expected in a typical
given” in Kneeland that the court described as “uncertain,”        arms-length contract for services between a vendor and
not the “foundation” on which the court relied. Although the       purchaser” is not “supported by” those public funds, and is
court acknowledged that its description of the test was less       not a governmental body under the Act. CareFlite v. Rural
than clear, “[o]ne may have no quarrel with the formulae”          Hill Emergency Med. Servs., Inc., 418 S.W.3d 132, 141–
it adopted. Kneeland, 850 F.2d at 228. I would take this           42 (Tex.App.–Eastland 2012, no pet.)(holding that medical
opportunity to clarify the Kneeland test by articulating three     service provider was not a governmental body); see also
basic requirements for determining whether a private entity        Hart, 382 S.W.3d at 595 (holding that association of appraisal
that provides services to or for the government and is paid        districts was not a governmental body).
with public funds is “supported in whole or part by public
funds” and is thus a governmental body under the Act.              A second requirement for a private entity to be “supported ...
                                                                   by public funds,” then, should be that the private entity must
                                                                   receive public funds not as compensation or consideration
                                                                   paid in exchange for “specific goods” or “specific measurable
                 a. Receipt of Public Funds
                                                                   services,” but as a general or unrestricted payment provided
 *28 First, to be “supported by” public funds, a private entity    to subsidize or underwrite the private entity's activities.
must at least “receive” public funds, so an entity that does not   SeeTex. Att'y Gen. Op. No. GA–666; compareTex. Att'y Gen.
receive public funds is not a governmental body under this         ORD–228 (concluding that commission was governmental
provision. Thus, while the Attorney General was cognizant          body because it received public funds “used for [its]
in JM–821 that the role of a volunteer fire department is one      general support”); Tex. Att'y Gen. ORD–302 (concluding that
“traditionally provided by governmental bodies,” this fact,        promoter of manufacturing and industrial development was
standing alone, is not enough. SeeTex. Att'y Gen. Op. No.          governmental body because it was provided “unrestricted”
JM–821. Arguably, at least, the private high school in JM–         grant of public funds); Tex. Att'y Gen. Op. No. JM–116
154, the water supply corporation in JM–596, and the Fiesta        (concluding that athletic association was governmental body
planning commission in ORD–569 also provided services              because it was provided public funds to be “used for [its]
“traditionally provided by governmental bodies.” SeeTex.           ‘general support ... rather than being attributable to specific
Att'y Gen. ORD–569; Tex. Att'y Gen. Op. Nos. JM–154,               payments for specific measurable services” ”), withTex. Att'y
JM–596. But because they did not receive public funds, they        Gen. ORD–343 (concluding that ambulance service provider
were not governmental bodies under part (xii). See TEX.            was not governmental body because it was paid specific
GOV'T CODE § 552.003(1)(A)(xii). As the Attorney General           amounts to cover specific, measurable services provided
recognized, “[t]he threshold question is whether the [private      under service contract).
entity] receives any funds from the [public fisc].” Tex. Att'y
Gen. ORD–569; see alsoTex. Att'y Gen. OR2013–09038                 This requirement would most easily be met when a
(determining that El Paso Zoological Society that received no      governmental entity provides a “grant” to promote the
public funds was not a governmental body).                         private entity's activities, but it may also be met when the
                                                                   governmental entity “pays” the private entity to provide
                                                                   services to or for the governmental entity or its constituents.
                                                                   The terminology that the parties choose to use should not be
              b. Support, Not Consideration                        determinative. A key factor in the context of a service contract
                                                                   like those at issue here would be whether the relationship
Everyone agrees, however, that merely “receiving” public
                                                                   between the service provider and the governmental entity
funds does not equate to being “supported by” those funds.
                                                                   is the kind of “quid pro quo ” relationship common in the
Governmental entities regularly purchase a wide variety
                                                                   service industry, see Kneeland, 850 F.2d at 230, or whether
of goods and services from private vendors, including
                                                                   the relationship is something more akin to a governmental
everything from legal pads to legal services, and I agree
                                                                   body outsourcing governmental services to a private entity,
that such vendors are generally not “supported ... by public



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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

seeTex. Att'y Gen. ORD–228, ORD–302; see also Hart,                 because the statute includes the “part, section, or portion”
382 S.W.3d at 595 (observing that association of appraisal          of entities that are supported “in part” by public funds, it is
districts did not perform services traditionally performed by       the nature of the public funds (as support or sustenance and
governmental bodies and instead provided services under             not as compensation or consideration), and not the amount or
conditions similar to what would be expected in typical arm's-      percentage of the public funds, that matters.
length transaction).

 *29 In this context, I note that the Attorney General's ruling
                                                                                   c. A Shared Common Purpose
here should have come as no surprise to the Partnership,
as Attorneys General have repeatedly concluded that                 Finally, to ensure that the funds are received as a general or
chambers of commerce, seeTex. Att'y Gen. Nos. ORD–621               unrestricted payment to subsidize or underwrite the private
(Arlington Chamber of Commerce), OR2001–4849 (Round                 entity's activities, a third requirement should be that the funds
Rock Chamber of Commerce), chambers-of-commerce-like                be intended to promote a purpose, interest, or mission that
entities, seeTex. Att'y Gen. ORD–228 (entity chartered to           the governmental and private entities share and would both
promote interest of Dallas–Fort Worth metropolitan area),           pursue even in the absence of their contractual relationship.
ORD–302 (entity promoting manufacturing and industrial              The mere existence of an “agency-type relationship” or
development around City of Bryan), and even the Partnership         a “common purpose or objective,” or even the fact that
itself, seeTex. Att'y Gen. OR2004–4221, are governmental            the service is one “traditionally provided by governmental
bodies under the Act. But these conclusions are based on a          bodies,” should not be sufficient by itself to meet this
“fact-specific” analysis of the contract and context of each        third requirement. SeeTex. Att'y Gen. Op. No. GA–666;
case. See Kneeland, 850 F.2d at 228; see also CareFlite,
                                                                    Kneeland, 850 F.2d at 228–29. 12 It is not unusual for
418 S.W.3d at 138 (“The answer to the [governmental-body]
                                                                    an arms-length services vendor to take on an agency-type
inquiry depends upon the circumstances of each case.”). As
                                                                    role for its customer, or for a governmental agency to
the Attorney General has confirmed, a chamber of commerce
                                                                    enter into an arms-length contract for government services
that is not “supported in whole or in part by public funds” is
                                                                    that the agency itself traditionally provides, and contracting
not a governmental body under the Act. SeeTex. Att'y Gen.
                                                                    parties will ordinarily share at least the common objective of
OR2015–05495 (2015) (finding Central Fort Bend Chamber
                                                                    effectuating the obligations and purposes of their contract. In
of Commerce is not governmental body because it only
                                                                    ORD–343, for example, the Amarillo Hospital District and its
received public funds as membership fees paid for specific
                                                                    ambulance service provider shared the common goal of the
measurable services).
                                                                    contract: providing the people of Amarillo with emergency
                                                                    transportation to local hospitals. SeeTex. Att'y Gen. ORD–
With regard to this second requirement, I would not dictate
                                                                    343. But such relationships do not necessarily result in the
that the public funds equal a particular amount or percentage
                                                                    governmental body “supporting” the private entity.
of the entity's total revenue, nor would I mandate that the
entity require those funds for its existence or survival. The Act
                                                                    12      See alsoCareFlite, 418 S.W.3d at 142 (“[W]e have
defines “governmental body” to include “the part, section, or
                                                                            not found [ ] any authority, primary or persuasive,
portion” of an entity that is “supported in whole or in part
                                                                            that stands for the proposition that, if a private entity
by public funds.” TEX. GOV'T CODE § 552.003(1)(A)(xii).
                                                                            and a governmental body share a common purpose
Thus, public funds could make up only a small portion of
                                                                            or objective, the private entity is automatically a
an entity's total revenues and yet provide general support,                 governmental body for purposes of the [Act]. Neither
and even the sole support, for a particular part, section, or               are we aware of any like authority when an entity
portion of the entity, or support “in part” of the entity as                provides services traditionally provided by governmental
a whole. SeeTex. Att'y Gen. ORD–602 (holding that city                      bodies.”).
provided general support to museum even though public
                                                                     *30 Instead, I would hold that a supportive relationship
funds constituted only 15% of total revenue, but only portion
                                                                    exists when the parties share a true “identity of interests” that
of museum that received “direct support” was a governmental
                                                                    each of them has beyond any particular transaction or finite
body). Under this construction of the Act, that part, section,
                                                                    series of transactions between them. See Kneeland, 850 F.2d
or portion of the entity is a governmental body under the
                                                                    at 228–29 (“[T]here apparently is some common purpose or
Act, even if the rest of the entity is not. See id. In short,
                                                                    objective between the association and the universities, or they


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Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

would not be drawn to each other, but there is no real identity              consideration for specific, measurable services), the firm
of interest and neither may be considered the agent of the                   would be a governmental body under the Act.
other.”). The volunteer fire department in JM–821 provides            In summary, then, I would clarify the Kneeland test and hold
an example of this more extensive “identity of interests”             that a private entity (or a part, section, or portion thereof)
relationship. SeeTex. Att'y Gen. Op. No. JM–821. There, the           is “supported in whole or in part by public funds,” and is
private entity and the governmental entity each independently         thus a governmental body under the Public Information Act,
had the purpose of protecting citizens and property from fires        if (1) the private entity receives public funds; (2) it does so
and other hazards, and the governmental entity promoted the           not as compensation or consideration made in exchange for
private entity's pursuit of that purpose by providing “general        “specific goods” or “specific measurable services,” but as
support.” See id.                                                     a general or unrestricted payment provided to subsidize or
                                                                      underwrite the private entity's activities; and (3) the funds
I would thus distinguish between (1) a situation in which             provided are intended to promote a purpose, interest, or
a private entity contractually undertakes a governmental              mission that the governmental and private entities share and
entity's objectives because the governmental entity agrees to         would each pursue even in the absence of their contractual
pay for those services, and (2) a situation in which a private        relationship.
entity and a governmental entity that each independently have
the same purpose or interest, and thus an “identity of interest,”
contractually agree to pursue that interest in cooperation and
using public funding. See Kneeland, 850 F.2d at 228–29. For                                          III.
example, when a governmental entity hires a law firm to
represent it in litigation, the firm and the government share                       Application to the Partnership
interests and objectives specific to the firm's representation
of that entity, but they do not necessarily have an “identity of       *31 The Partnership, which undisputedly received public
interests.” Although both the firm and the client may desire          funds, asserts that its agreements with the City were arm's-
and jointly pursue the same outcome from the representation,          length, quid pro quo contracts that only obligated it to
the firm's interest in achieving that outcome is transaction          perform specific and measurable services. The Attorney
specific: the law firm takes on that goal because the client          General disagrees, contending that the Partnership was “paid
pays it to do so, and but for the client-attorney relationship,       a certain amount of money on a quarterly basis to accomplish
the law firm generally has no stake in the outcome of the             a broad range of goals designed to promote the City.” The
                                                                      Court agrees with the Partnership. Under the facts of this
litigation. 13
                                                                      record, I would conclude that the Partnership meets all three
                                                                      requirements for being “supported ... by public funds.”
13      Contrary to the Court's concern, this distinction would
        apply as effectively when the government contracts with
        a private firm to “provide more enduring and wide-            A. Payments to Subsidize the Partnership's Activities
        ranging counsel” as it would when it hires a firm to
        handle a specific matter. See ante at ––––. In either case,   The parties do not dispute, and I agree, that some of
        the third requirement (common purpose) typically would        the provisions in the Partnership's contracts with the City
        not be met because it is not part of the law firm's mission   imposed specific and definite obligations on the Partnership
        or purpose to achieve the specific objectives that the        to provide a measurable amount of service. The court of
        government hires it to achieve, other than to fulfill its
                                                                      appeals also agreed, but found that the Partnership's “major
        obligation to its client. But if the government paid funds
                                                                      obligations under the contract are not specific, definite, or
        to a special interest firm whose mission as a firm was to
                                                                      tied to a measurable amount of service for a certain amount
        protect the environment, or promote a pro-life agenda,
                                                                      of money.” 407 S.W.3d at 784. The court provided these
        or increase health care for children, for example, this
        third requirement might be satisfied if the purpose of the    examples of the Partnership's indefinite obligations to:
        government's payment was to “support” the firm's efforts
                                                                        • [i]dentify new business opportunities, secure economic
        to accomplish that mission. If the second requirement
        were also satisfied (i.e., the government paid the funds to
                                                                           incentives and increase outreach and recruitment
        subsidize or underwrite the firm's efforts, rather than as         activities to the region's targeted key industries to




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 30
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

     strengthen the City of Houston as a competitive place to     convention center. The Partnership also takes issue with the
     do business;                                                 court of appeals' observation that the Partnership does not
                                                                  perform its obligations “in exchange for a certain amount
  • partner with the airport system to recruit, relocate, and     of money,” as the Partnership is paid a set amount on
     expand business which supports the master plan, and to       a quarterly basis “regardless of whether or how much it
     identify business incentives available in both public and    does in furtherance of the contract's goals.” According to
     private sectors;                                             the Partnership, “this observation fails to acknowledge or
                                                                  appreciate that all payments under the contracts are made ‘in
  • make its research capabilities available to the City
                                                                  arrears and are contingent upon receipt and approval’ ” of the
    of Houston's convention and entertainment facilities
                                                                  Partnership's performance reports.
    department and its convention and visitor's bureau for
    marketing reports;
                                                                   *32 I agree with the court of appeals that while some of
  • support and coordinate with HAS to develop new                the services the Partnership provides under the contracts are
    air routes, stimulate increased international trade and       specific and measurable, the major obligations are broad
    business for Houston companies;                               and open-ended. Although the performance reports may
                                                                  identify specific services that the Partnership performed in
  • promote HAS stories in international markets and              fulfilling those general promises, these after-the-fact reports
    highlight HAS efforts to provide airports allowance for       of services the Partnership decided to provide do not impose
    expansion and ease of transportation;                         a contractual obligation on the Partnership to provide those
                                                                  specific services. And although the contracts provide that the
  • “coordinate on matters of mutual interest” before the U.S.    City's quarterly payments to the Partnership are “contingent
     Congress, federal agencies, the Texas Legislature, and       upon receipt and approval by the Director of [the] written
     Texas agencies; and                                          progress reports in accordance with Article III(C),” that
                                                                  article merely authorizes the Director to require reports and
  • assist the City of Houston's mayor, should she ask for
                                                                  to determine their format and content; it does not authorize
     help, with “advancing various Economic Development
                                                                  the Director to dictate what services must be provided or
     and Marketing Initiatives.”
                                                                  included in the report or otherwise narrow the Partnership's
Id. at 784. In light of these provisions, the court of appeals    broad discretion to decide the types and amounts of services
concluded that it could not “say that overall the contract here   to provide. Finally, the fact that it might be difficult or
imposes specific and definite obligations on [the Partnership]    impossible for the contracts to provide greater detail about
to provide a measurable amount of services to the City of         some of the “intangible deliverables” does not weigh in favor
Houston in exchange for a certain amount of money, as would       of treating those provisions as if they called for “specific,
be expected in a typical arms-length contract for services        measurable services” when they do not. In ORD–602, the
between a vendor and purchaser.” Id.                              Attorney General recognized that the “highly specialized,
                                                                  unique services” the museum provided to the City of Dallas
The Partnership contends, and the Court apparently agrees,        could not be “known, specific, or measurable,” but the
that its contractually mandated performance reports provide       Attorney General still concluded that the museum was, in
the missing specifics for the broader obligations on which        part, a governmental body under the Act. SeeTex. Att'y Gen.
the court of appeals relied. The Partnership also asserts that    ORD–602 (1992).
some of its contractual obligations are necessarily vague
because “in the context of intangible deliverables it would be    As the court of appeals pointed out, the contracts at
nearly impossible to provide greater details.” For example,       issue do not tie the City's payments to the Partnership to
the contracts require the Partnership to “make its research       discrete services or measurable amounts of service. Instead,
capabilities available on request to” the City of Houston's       the City paid the Partnership a flat fee of $196,250 per
convention and entertainment facilities department and its        quarter, regardless of whether, or how, or how extensively
convention and visitor's bureau “to facilitate the creation       the Partnership made efforts to “identify new business
of professional, sophisticated marketing reports,” but the        opportunities, secure economic incentives, and increase
City cannot predict all of the groups that might approach         outreach and recruitment activities to the region's targeted
it during the course of a year with an interest in the            key industries to strengthen Houston as a competitive place



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           31
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

to do business.” The absence of an identifiable link between          *33 I now consider whether the City's funds were
the services provided and the payment due, when considered           intended to promote a purpose, interest, or mission that
in conjunction with the lack of specificity and measurability        the City and the Partnership share and would each pursue
in many of the contract's service requirements, demonstrates         even in the absence of their contractual relationship. The
that the City paid the Partnership public funds to subsidize,        evidence here readily establishes that this requirement is
underwrite, and support the Partnership's activities.                met. Independent from any contract with the City, the
                                                                     Partnership exists to promote job creation, increased trade,
It is true that public funds make up only a small “part” of the      and capital investment in the greater Houston area. As the
Partnership's support. But when an entity, or “part, section,        Court agrees, even without the City's contract, the Partnership
or portion” of an entity, receives public funds for its general      “could and would continue to promote the greater Houston
support, the entity has broad discretion to use those funds          economy to advance its own interests and those of its
as it sees fit to accomplish its goals, and the entity shares        more than 2,000 non-government members.” Ante at ––––.
those goals with a public entity that would otherwise use the        The City contracted with the Partnership because the City
funds to accomplish those goals itself, the entity, or that “part,   independently shares those same interests. The City did not
section, or portion” of the entity, is “supported in whole or in     pay the Partnership to provide services merely to promote
part by public funds.” This does not mean that the public has        the City's individual objectives, but to promote objectives
a right to know how the Partnership spends all of its funds,         that the City and the Partnership share. In fact, the contracts
but the Partnership has made a tactical decision here not to         required that the scope of the Partnership's services “support
provide information about where the public funds go within           the goals, visions, and objectives outlined in the Partnership's
the Partnership or how the public funds are spent, so that           Strategic Plan.” (Emphasis added.) The interest the City
we could limit its duty to produce records under the Act to          and Partnership share does not arise solely out of the
“records concerning its operations that are directly supported       parties' contractual relationship—both parties independently
by governmental bodies,” as the Attorney General has done            share these objectives. The City has an inherent motive to
for the Partnership in the past. SeeTex. Att'y Gen. OR2004–          promote its own financial interests, and promotion of the
4221 (emphasis added).                                               City's economic development was a primary focus of the
                                                                     Partnership's purpose.
Finally, as noted, the 2008 services agreement included
language specifying that the City's funds were “solely               Under these circumstances, I would hold that the Partnership
for services rendered under this Agreement and are not               was “supported in whole or in part by public funds” so
intended to support [the Partnership] in any of its activities       as to fall within the definition of a “governmental body”
not specifically set forth in this Agreement.” But the               under the Public Information Act. See TEX. GOV'T CODE
determination of this issue must depend on the actual nature         § 552.003(1)(A)(xii).
of the services and payment obligations under the contract.
The 2008 contract's conclusory statements that the contract
does not render the Partnership a governmental body and
                                                                                                   IV.
that the contract payments are not for general support do not
make it so. Just as a governmental body cannot avoid the
Act's requirements by promulgating rules, see Indus. Found.                                  Policymaking
of the S., 540 S.W.2d at 677, it cannot do so by contractually
                                                                     Although the Court acknowledges the Act's instruction that
agreeing that the Act does not apply. Otherwise, every entity
                                                                     we construe it liberally in favor of a request for information,
contracting with the government would shield itself from
                                                                     see id.§ 552.001(b), the Court chooses to adopt the most
the Act simply by stating in the contract that it is not a
                                                                     narrow construction of “supported” possible, because a
governmental body. In light of the broad, open-ended services
                                                                     broader construction would permit “public intrusion into the
the Partnership agreed to perform under these contracts, I
                                                                     private affairs of non-governmental entities,”ante at ––––,
would conclude that the second requirement is met.
                                                                     “pry open the sensitive records of private entities,”ante at
                                                                     –––– n.12, and subject the Partnership to “invasive disclosure
B. Identity of Interests                                             requirements,” ante at ––––. Even if we could construe the
                                                                     Act according to our preferred results rather than the text of
                                                                     the statute (which we cannot, or at least, should not), I find


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              32
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

the Court's concerns to be not nearly as troubling as the Court   government is doing. The Partnership asserts, “The stakes are
suggests.                                                         tremendous.” 14

What the Court fails to acknowledge is that the Act               14      We have also received amicus briefs from several
protects the Partnership's “sensitive records,” but the
                                                                          chambers of commerce arguing that the court of appeals'
Partnership elected not to seek that protection. The Act
                                                                          holding, if allowed to stand, will be “catastrophic” for
expressly excepts from disclosure all information that is                 chambers of commerce in Texas and will render them
“confidential by law, either constitutional, statutory, or by             “wholly unable to function.”
judicial decision.” TEX. GOV'T CODE § 552.101. Even
                                                                   *34 I am not convinced that the effect of our determination
if the information is not confidential by law, the Act still
                                                                  would or must be as drastic as either party, or the Court,
excepts it from disclosure if, for example, it constitutes
                                                                  suggests. Although the Court concludes that the Partnership
the Partnership's commercial or financial information and
                                                                  is not a governmental body, the Act still empowers the
(as the Court assumes) its disclosure would cause the
                                                                  public to require the City to disclose all “information that is
Partnership “substantial competitive harm.” Id. § 552.110(b).
                                                                  written, produced, collected, assembled, or maintained” by
In fact, as the Court recently held, the Act excepts the
                                                                  or for the City “under a law or ordinance or in connection
information if its release would even just “give advantage
                                                                  with the transaction of official business.” TEX. GOV'T
to a competitor.” See Boeing Co. v. Paxton, No. 12–1007,
                                                                  CODE § 552.002(a)(1) (defining “public information”). This
––– S.W.3d ––––, –––– (Tex. June 19, 2015) (construing
                                                                  extends to not only the City's service agreements with
TEX. GOV'T CODE § 552.104). And particularly apropos
                                                                  the Partnership and all reports and other information the
to the Partnership's activities, the Act specifically excepts
                                                                  Partnership provided to the City under those contracts, but
certain “information [that] relates to economic development
                                                                  also all information the Partnership collects, assembles, or
negotiations involving a governmental body and a business
                                                                  maintains for the City “in connection with the transaction of
prospect that the governmental body seeks to have locate,
                                                                  official business,” if the City “owns,” “has a right of access
stay, or expand in or near the territory of the governmental
                                                                  to,” or “spends or contributes public money for the purpose
body.” TEX. GOV'T CODE § 552.131(a). The Partnership
                                                                  of writing, producing, collecting, assembling, or maintaining
did not assert any of these exceptions in this appeal. In fact,
                                                                  the information.” Id. § 552.002(a). Even if the requested
it did not assert any exceptions at all, even though it has
                                                                  information is not in the City's actual possession, the Act still
successfully asserted exceptions in the past. SeeTex. Att'y
                                                                  provides broad access to the Partnership's information related
Gen. OR2004–4221. Nor did it ever contend that only a “part,
                                                                  to “the transaction of official business.” Id.
section, or portion” of the Partnership is supported by public
funds, even though it successfully made that assertion in the
                                                                  Conversely, if the Court concluded, as I do, that the
past as well. See id.
                                                                  Partnership is a governmental body, the Partnership could
                                                                  still protect its confidential and commercially sensitive
The Partnership contends that the court of appeals' decision
                                                                  information by relying on the Act's numerous exceptions. In
represents a “vast overexpansion of the Public Information
                                                                  addition, the Partnership could assert (as it has previously
Act to reach private business information that the public has
                                                                  asserted), that only a particular “part, section, or portion” of
no inherent or legitimate right to know.” In response, the
                                                                  the Partnership is supported in whole or in part by public
Attorney General asserts that the Partnership's construction
                                                                  funds, and only that “part, section, or portion” is required
of the statute would permit governmental bodies to evade
                                                                  to disclose information in response to a public information
public scrutiny by contracting with private entities to carry
                                                                  request. See id.§ 552.003(1)(A)(xii); see alsoTex. Att'y
out government business. “If governmental bodies can
                                                                  Gen. OR2004–4221 (concluding that “the [Partnership's]
shield information from public scrutiny by outsourcing
                                                                  records concerning its operations that are directly supported
their business to private companies,” the Attorney General
                                                                  by governmental bodies are subject to the Act as public
contends, “the purpose of the [Act] is frustrated.” In short,
                                                                  information”) (emphasis added). In its appeal to this Court,
each party warns that the other's proposed construction
                                                                  however, the Partnership does not assert any exceptions,
will have dire consequences, either destroying private
                                                                  does not contend that only a particular “part, section, or
entities' ability to keep their private information private
                                                                  portion” of the Partnership was supported by public funds,
or undermining the people's right to know what their
                                                                  and has made no other effort to protect the information in its
                                                                  check registers, other than to claim it is not a governmental


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              33
Greater Houston Partnership v. Paxton, --- S.W.3d ---- (2015)
2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

                                                                                 109 S.W.3d 741, 748 (Tex.2003)) (alteration in F.F.P.
body. It is a risky litigation strategy, and the Court should
                                                                                 Operating Partners, 237 S.W.3d at 690).
not let it motivate us to misinterpret the Act for fear that
the Partnership's confidential financial information would
otherwise be disclosed.                                                                                 V.

In any event, regardless of whether the effects will be as
drastic as the Court, the Partnership, or the Attorney General                                     Conclusion
suggest, our job is to interpret and apply the statute as written,
                                                                         I would hold that the Greater Houston Partnership was
not to rewrite it to achieve the policy outcomes they or we
                                                                         supported in whole or in part by public funds and would
may prefer. See In re Tex. Dep't of Family & Protective Servs.,
                                                                         thus agree with the Attorney General, the trial court, and the
210 S.W.3d 609, 614 (Tex.2006) (“It is not the Court's task to
                                                                         court of appeals that the Partnership is a governmental body
choose between competing policies addressed by legislative
                                                                         for purposes of Jenkins's public information requests. The
drafting. We apply the mandates in the statute as written.”)
                                                                         Partnership has not argued that only a particular “part, section,
(citation omitted). 15                                                   or portion” of the Partnership received public funds, or that
                                                                         any of the information at issue falls within one of the Act's
15      See also F.F.P. Operating Partners, L.P. v. Duenez, 237          exceptions to required disclosure. I would therefore affirm
        S.W.3d 680, 690 (Tex.2007) (“[W]e do not pick and                the court of appeals' judgment requiring the Partnership to
        choose among policy options on which the Legislature             disclose its 2007 and 2008 check registers pursuant to the
        has spoken. ‘Our role ... is not to second-guess the             Public Information Act.
        policy choices that inform our statutes or to weigh
        the effectiveness of their results; rather, our task is to
        interpret those statutes in a manner that effectuates the        All Citations
        Legislature's intent.’ ”) (quoting McIntyre v. Ramirez,
                                                                         --- S.W.3d ----, 2015 WL 3978138, 58 Tex. Sup. Ct. J. 1362

End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  34
IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (1997)
40 Tex. Sup. Ct. J. 273

                                                                          for perfecting appeal, where judgment was
                                                                          not rendered as matter of law, but involved
     KeyCite Yellow Flag - Negative Treatment                             resolution of disputed factual matters apart from
Declined to Extend by Odessa Texas Sheriff's Posse, Inc. v. Ector
                                                                          the filings. Vernon's Ann.Texas Rules Civ.Proc.,
County,    Tex.App.-Eastland, October 26, 2006
                                                                          Rule 215; Rules App.Proc., Rule 41(a)(1).
                      938 S.W.2d 440
                   Supreme Court of Texas.                                28 Cases that cite this headnote

    IKB INDUSTRIES (Nigeria) Limited, Petitioner,                   [2]   Appeal and Error
                       v.                                                    Extension of Time
      PRO–LINE CORPORATION, Respondent.                                   30 Appeal and Error
                                                                          30VII Transfer of Cause
               No. 95–0703.         |    Jan. 31, 1997.
                                                                          30VII(A) Time of Taking Proceedings
                                                                          30k352 Extension of Time
Corporation brought breach of contract and other claims
                                                                          30k352.1 In general
against second corporation. The 298th District Court, Dallas
                                                                          Not every case finally adjudicated without a jury
County, Adolph Canales, J., dismissed action with prejudice
                                                                          trial is “case tried without a jury” within meaning
based on first corporation's abuse of discovery process.
                                                                          of appellate rule under which, in case tried
Following denial of its request for findings of fact and
                                                                          without a jury, timely filed request for findings
conclusions of law, first corporation appealed. The Court of
                                                                          of fact and conclusions of law extends deadline
Appeals, Whittington, J., 901 S.W.2d 568, dismissed appeal
                                                                          for perfecting appeal from 30 days to 90 days
as untimely. On application for writ of error, the Supreme
                                                                          after judgment is signed; for example, request
Court, Hecht, J., held that: (1) in case tried without a jury,
                                                                          for findings in case concluded by summary
request for findings of fact and conclusions of law extends
                                                                          judgment does not extend appellate deadlines.
time for perfecting appeal when such findings may be useful
                                                                          Rules App.Proc., Rule 41(a)(1).
for appellate review, and (2) request in present case extended
appellate deadlines because judgment was not rendered as                  73 Cases that cite this headnote
matter of law, but involved resolution of disputed factual
matters apart from the filings.
                                                                    [3]   Trial
Application for writ of error granted; judgment of Court of                    Duty to Make in General
Appeals reversed; case remanded.                                          388 Trial
                                                                          388X Trial by Court
Baker, J., filed a dissenting opinion.                                    388X(B) Findings of Fact and Conclusions of
                                                                          Law
                                                                          388k388 Duty to Make in General
                                                                          388k388(1) In general
 West Headnotes (5)                                                           (Formerly 228k392(1))
                                                                          Purpose of rule under which, in any case tried
                                                                          in district or county court without a jury, any
 [1]      Appeal and Error                                                party may request court to state in writing its
             Extension of Time                                            findings of fact and conclusions of law is to
          30 Appeal and Error                                             give a party a right to findings and conclusions
          30VII Transfer of Cause                                         finally adjudicated after a conventional trial on
          30VII(A) Time of Taking Proceedings                             the merits before the court. Vernon's Ann.Texas
          30k352 Extension of Time                                        Rules Civ.Proc., Rule 296.
          30k352.1 In general
          Plaintiff's request for findings of fact and                    58 Cases that cite this headnote
          conclusions of law following dismissal of
          case as “death penalty” sanction for discovery
                                                                    [4]   Appeal and Error
          abuse extended from 30 to 90 days the time


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (1997)
40 Tex. Sup. Ct. J. 273

             Extension of Time
                                                              Opinion
        30 Appeal and Error
        30VII Transfer of Cause
                                                              HECHT, Justice.
        30VII(A) Time of Taking Proceedings
        30k352 Extension of Time                               [1] Here, the sole question is whether requesting findings of
        30k352.1 In general                                   fact and conclusions of law following dismissal of a case as a
        Extension of period for perfecting appeal when        sanction for discovery abuse extends the time for perfecting
        party requests findings of fact and conclusions of    appeal under Rule 41(a)(1) of the Texas Rules of Appellate
        law in case tried without a jury serves purpose       Procedure. The court of appeals answered no. 901 S.W.2d
        of allowing trial court time to state basis for its   568. Under the circumstances of this case, as we explain, we
        judgment so that a party may determine whether        disagree.
        to appeal; that purpose is served whenever such
        findings may be useful for appellate review,          IKB Industries (Nigeria) Limited sued Pro–Line Corporation.
        as when case has been dismissed for discovery         Pro–Line moved to dismiss IKB's action as a sanction for
        abuse. Vernon's Ann.Texas Rules Civ.Proc.,            discovery abuse. See TEX.R. CIV. P. 215. After a hearing,
        Rule 215; Rules App.Proc., Rule 41(a)(1).             for which there is no statement of facts, the district court
                                                              granted the motion, struck IKB's pleadings, and dismissed the
        25 Cases that cite this headnote
                                                              action with prejudice. The court's judgment recites that the
                                                              court considered “the Court's file—including all pleadings,
 [5]    Appeal and Error                                      affidavits, and deposition excerpts filed with the Court (and
           Extension of Time                                  of which the Court takes judicial notice) and .. . the testimony
        30 Appeal and Error                                   and argument of counsel.” (Emphasis added.) The judgment
        30VII Transfer of Cause                               contains seven pages of findings that the court made, as the
        30VII(A) Time of Taking Proceedings                   judgment recites, “from the evidence before it”.
        30k352 Extension of Time
        30k352.1 In general                                   Notwithstanding these findings, IKB filed a request for
        Request for findings of fact and conclusions of       findings of fact and conclusions of law, referencing Rule 296
        law in case tried without a jury does not extend      of the Texas Rules of Civil Procedure. Rule 296 states in part:
        the time for perfecting appeal of a judgment
        rendered as a matter of law, where findings and                    In any case tried in the district or
        conclusions can have no purpose and should not                     county court without a jury, any
        be requested, made, or considered on appeal;                       party may request the court to state
        however, when such findings may be useful for                      in writing its findings of fact and
        appellate review, timely filed request extends                     conclusions of law. Such request ...
        appellate deadline from 30 days to 90 days after                   shall be filed within twenty days after
        entry of judgment. Rules App.Proc., Rule 41(a)                     judgment is signed....
        (1).
                                                              IKB's request was filed eight days after the dismissal order
        116 Cases that cite this headnote                     was signed. The district court did not respond to IKB's
                                                              request.

                                                              A timely filed request for findings of fact and conclusions
Attorneys and Law Firms                                       of law extends the deadline for perfecting appeal from 30
                                                              to 90 days after the judgment is signed “in a case tried
*440 Robert H. Westerburg, Dallas, for petitioner.            without a jury.” TEX.R.APP. P. 41(a)(1). Since IKB filed
                                                              a cost bond 49 days after the dismissal order was signed,
Robert R. Gibbons, Dallas, for respondent.
                                                              IKB perfected appeal only if its request for findings and
*441 Before PHILLIPS, C.J., and GONZALEZ, CORNYN,             conclusions extended the deadline for doing so from 30 to
ENOCH, SPECTOR, OWEN and ABBOTT, JJ.                          90 days—that is, only if the case was “tried without a jury”
                                                              within the meaning of Rule 41(a)(1).


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (1997)
40 Tex. Sup. Ct. J. 273

                                                                     county court without a jury”. Our approach to applying this
 [2] Not every case finally adjudicated without a jury trial         language, similar to the language of Rule 41(a)(1), has also
is “a case tried without a jury” within the meaning of               been functional. A party is not entitled to findings of fact and
Rule 41(a)(1). For instance, we held in Linwood v. NCNB              conclusions of law following summary judgment, Linwood,
Texas, 885 S.W.2d 102, 103 (Tex.1994), that a request for            885 S.W.2d at 103, judgment non obstante veredicto, Fancher
findings in a case concluded by summary judgment does not            v. Cadwell, 159 Tex. 8, 314 S.W.2d 820, 822 (1958), or
extend appellate deadlines. The reason is not that a summary         judgment after directed verdict, Ditto v. Ditto Investment Co.,,
judgment proceeding is in no sense a trial. On the contrary,         158 Tex. 104, 309 S.W.2d 219, 220 (1958), again, not because
we have held that “[a] summary judgment proceeding is a              these adjudications are in no sense trials. Indeed, judgment
trial within the meaning of Rule 63” of the Texas Rules              non obstante veredicto is rendered after a full trial and verdict.
of Civil Procedure, which governs amendment of pleadings.            Rather, a party is not entitled to findings and conclusions in
Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d                such instances because judgment must be rendered as a matter
487, 490 (Tex.1988). True, a “summary judgment proceeding            of law. Were there facts to find the three judgments we have
is not a conventional trial but rather an exception to the           listed are the only ones to which Rule 296 does not apply.
usual and traditional form of procedure wherein witnesses are        The point is simply that Rule 296, like Rule 41(a)(1), is not
heard in open court and documentary evidence is offered and          governed by a definition of the word, “trial”, common to both,
received in evidence.” Richards v. Allen, 402 S.W.2d 158,            but by their respective purposes.
160 (Tex.1966). But this distinction was not the basis for our
decision in Linwood.                                                 The problem with a restrictive construction of Rule 41(a)(1)
                                                                     —not allowing a party's request for findings and conclusions
Instead, Linwood takes a functional approach to Rule 41(a)           to extend the time for perfecting appeal unless the party is
(1). It holds, not that a summary judgment is not a trial            entitled to findings and conclusions under Rule 296—is that
within the meaning of the rule, but that “findings of fact and       it conflicts with the purpose of Rule 41(a)(1). This is because
conclusions of law have no place in a summary judgment               the purposes of Rule 296 and Rule 41(a)(1) are not identical.
proceeding”. Linwood, 885 S.W.2d at 103. The reason
findings and conclusions “have no place” in a summary                 [3] The purpose of Rule 296 is to give a party a right to
judgment proceeding is that for summary judgment to be               findings of fact and conclusions of law finally adjudicated
rendered, there cannot be a “genuine issue as to any material        after a conventional trial on the merits before the court. In
fact”, TEX.R. CIV. P. 166a(c), and the legal grounds are             other cases findings and conclusions are proper, but a party
limited to those stated in the motion and response, Stiles v.        is not entitled to them. For example, in a case like this one
Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993). In             in which judgment is rendered as a sanction for discovery
other words, if summary judgment is proper, there are no             abuse, findings for imposing sanctions may be helpful, and we
facts to find, and the legal conclusions have already been           have encouraged their use. TransAmerican Nat. Gas Corp. v.
stated in the motion and response. The trial court should            Powell, 811 S.W.2d 913, 919 n. 9 (Tex.1991); Chrysler Corp.
not make, and an appellate court cannot consider, findings           v. Blackmon, 841 S.W.2d 844, 852 (Tex.1992). But we do not
of fact in connection with a summary judgment. Because               require them for two reasons. One is practical: they are often
a request for findings *442 and conclusions following                unnecessary, and requiring them in every case would unduly
summary judgment can have no purpose, should not be filed,           burden trial courts. As we explained in Blackmon:
and if filed, should be ignored by the trial court, such a request
should not extend appellate deadlines. Linwood rejects a                          [W]e do not wish to unnecessarily
broad construction of Rule 41(a)(1) that would cause the                          burden our trial courts by requiring
filing of a request for findings and conclusions to extend the                    them to make written findings in all
time for perfecting appeal in every case adjudicated without                      cases in which death penalty sanctions
a jury.                                                                           are imposed. First, the benefit of the
                                                                                  trial court's explanation in the record of
The most restrictive construction of Rule 41(a)(1) would                          why it believes death penalty sanctions
not allow a request for findings and conclusions to extend                        are justified may be sufficient to guide
the time for perfecting appeal unless the request was proper                      the appellate court. Second, written
under Rule 296—that is, “[i]n any case tried in the district or                   findings are not needed in the vast
                                                                                  majority of relatively uncomplicated


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IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (1997)
40 Tex. Sup. Ct. J. 273

             cases or even more complex cases                      appeal of a judgment rendered as a matter of law, where
             involving only a few issues pertinent                 findings and conclusions can have no purpose and should
             to the propriety of death penalty                     not be requested, made, or considered on appeal. Examples
             sanctions. We doubt that findings in                  are summary judgment, judgment after directed verdict,
             such cases would meaningfully assist                  judgment non obstante veredicto, default judgment awarding
             appellate review.                                     liquidated damages, dismissal for want of prosecution
                                                                   without an evidentiary hearing, dismissal for want of
841 S.W.2d at 852. The other reason findings are not required      jurisdiction without an evidentiary hearing, dismissal based
whenever they may be useful is that appellate courts are not       on the pleadings or special exceptions, and any judgment
obliged to give them the same level of deference. A legally        rendered without an evidentiary hearing. A timely filed
correct judgment based on findings of fact made after a trial      request for findings of fact and conclusions of law extends
on the merits cannot be set aside on appeal if the findings        the time for perfecting appeal when findings and conclusions
are supported by sufficient evidence. Harris County Flood          are required by Rule 296, or when they are not required by
Control Dist. v. Shell Pipe Line Corp., 591 S.W.2d 798, 799        Rule 296 but are not without purpose—that is, they could
(Tex.1979). An order imposing discovery sanctions, on the          properly be considered by the appellate court. Examples are
other hand, may be reversed for an abuse of discretion even        judgment after a conventional trial before the court, default
if findings and evidence support it. Blackmon, 841 S.W.2d at       judgment on a claim for unliquidated damages, judgment
852–853. There is less reason to require findings when they        rendered as sanctions, and any judgment based in any part on
are not as binding on appeal.                                      an evidentiary hearing.

 [4] The purpose of Rule 41, on the other hand, is to              In the present case, although sanctions were imposed largely
prescribe the time for perfecting appeal. The deadline is 30       on the basis of discovery requests and responses that are a
days after the judgment is signed, unless extended by the          matter of record and indisputable, there appears to be a factual
filing of a motion for new trial or of a request for findings      dispute over IKB's explanations for its alleged discovery
and conclusions in a case tried without a jury. The first          abuse. The trial court's extensive findings themselves indicate
exception affords *443 the trial court time to consider and        a resolution of disputed factual matters apart from the filings
decide the motion. The second exception allows the trial           included in the transcript. Applying the rule we have adopted,
court time to state the basis for its judgment so that a party     we hold that IKB's request for findings and conclusions
may determine whether to appeal. Often, perhaps usually, the       extended the deadline for perfecting appeal. Thus, the court
decision to appeal is not controlled by the court's findings       of appeals erred in dismissing the appeal.
and conclusions; nevertheless, the purpose of Rule 41(a)(1)
is to allow time for the court to make them and the parties        The dissent argues that whether a request for findings extends
to consider them. The purpose of the second exception is           the time for perfecting appeal should depend upon the
served not only when findings are required by Rule 296, but        standard of review. By this standard, a request for findings
whenever they may be useful for appellate review—as when           following dismissal for discovery abuse, as in this case,
a case has been dismissed for discovery abuse.                     would not extend the time for appeal even though we have
                                                                   encouraged trial courts to make these findings, and they can
Allowing a request for findings and conclusions to extend the      be considered on appeal. Moreover, it sometimes happens that
deadline for perfecting appeal when a party is not entitled to     the standard of review has not been finally determined. Ruiz
findings and conclusions under Rule 296 does not impair the        v. Conoco, Inc., 868 S.W.2d 752, 757–758 (Tex.1993). Thus
purpose of Rule 296. However, not to allow such a request          the standard the dissent would apply is less certain than the
to extend appellate deadlines does impair the purpose of Rule      one we adopt.
41(a)(1) by depriving a party of a statement of the basis of
the trial court's ruling to allow the party to determine whether   Accordingly, the Court grants IKB's application for writ
to appeal. A restrictive construction of Rule 41(a)(1) thus        of error and without hearing oral argument reverses the
conflicts with the core rationale of Linwood—that the rule         judgment of the court of appeals and remands the case to that
should be construed to accomplish its purpose.                     court for a consideration of other issues raised. TEX.R.APP.
                                                                   P. 170.
 [5] To summarize: A request for findings of fact and
conclusions of law does not extend the time for perfecting


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IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (1997)
40 Tex. Sup. Ct. J. 273


                                                                    ● Permit the parties to determine immediately whether
BAKER, Justice, dissenting.                                          findings and conclusions are necessary to the appeal and
Today the Court holds that a timely request for findings of          therefore necessary to request and extend the time to
fact and conclusions of law extends the time for perfecting          perfect the appeal;
appeal when findings and conclusions are required by Rule
296, or when they are not required by Rule 296 but are not          ● Permit the appellate court to determine immediately—
without purpose—that is, they could properly be considered            without the necessity of reviewing the entire record—
by the appellate court. The Court opines that its new rule            whether the request for findings and conclusions extends
does not conflict with the core rationale of Linwood—which            the time to perfect the appeal; and
is a functional approach that rejects a broad construction of
 *444 Rule 41(a)(1) that would allow the filing of a request        ● Avoid additional delays in processing and disposing of
for findings and conclusions to extend the time for perfecting        many appeals.
appeal in every case adjudicated without a jury. See Linwood
v. NCNB of Texas, 876 S.W.2d 393 (Tex.App.—Dallas), rev'd
on other grounds, 885 S.W.2d 102 (Tex.1994).                             I. REQUESTS FOR FINDINGS OF FACT

I respectfully disagree. The rule the Court adopts continues      Rule 41(a)(1) clearly relates to Rule 296. See TEX.R.APP.
to unduly complicate, rather than simplify, the issue raised in   P. 41(a)(1) and TEX.R. CIV. P. 296. Rule 296 only entitles
this case. In my view, the rule the Court adopts:                 a party to findings of fact and conclusions of law in cases
                                                                  tried in district or county court without a jury. Chavez v.
  ● Is in fact contrary to Linwood's functional approach to       Housing Auth. of El Paso, 897 S.W.2d 523, 525 (Tex.App.
    construing Rule 41(a)(1);                                     —El Paso 1995, writ denied). A court tries a case when
                                                                  there is an evidentiary hearing upon conflicting evidence.
  ● Requires the appellate court to review the entire record      Linwood, 876 S.W.2d at 395; Chavez, 897 S.W.2d at 525.
    to accurately determine if the evidentiary hearing did
                                                                  Accordingly, findings of fact are appropriate only when
    in fact involve the trial court's resolution of discrete
                                                                  the court is deciding fact issues. Chavez, 897 S.W.2d at
    fact issues outside the scope of the pleadings, motions,
                                                                  525. Where the court rules without determining discrete fact
    documents, and arguments of counsel;
                                                                  questions, requests for finding of fact and conclusions of law
                                                                  are neither appropriate nor effective for extending appellate
  ● Ignores appellate standards of review that establish
   whether the trial court must resolve discrete fact             deadlines. WISD Taxpayers Ass'n v. Waco Indep. Sch. Dist.,
   questions, and the impact these standards of review have       912 S.W.2d 392, 394 (Tex.App.—Waco 1996, no writ);
   upon a particular appeal; and                                  Chavez, 897 S.W.2d at 525–26. Findings specifically tied to
                                                                  an appropriate legal standard are the only type of findings that
  ● Adds delay to many appeals—an additional sixty days           can be truly beneficial to appellate review. Chrysler Corp. v.
    —when the judicial system is under fire from the legal        Blackmon, 841 S.W.2d 844, 853 (Tex.1992).
    community and the general public for the inordinate
    time—and concomitant costs—it takes to process a
    controversy through the system.
                                                                                II. PRINCIPAL APPELLATE
                                                                                 STANDARDS OF REVIEW
I believe a more appropriate and more workable rule is that
whether a request for findings of fact and conclusions of
law extends the time to appeal depends upon the standard of                      A. ABUSE OF DISCRETION
review that applies to the particular appeal. In my view, this
                                                                  Under an abuse of discretion standard, the appellate court
rule would:
                                                                  reviews the entire record to determine if the trial court acted
  ● Support Linwood's functional approach to construing           arbitrarily and unreasonably, and thus abused its discretion.
   Rule 41(a)(1);                                                 Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986). The
                                                                  reviewing court may not reverse the trial court for an abuse of
                                                                  discretion because it disagrees with the trial court's decision



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IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (1997)
40 Tex. Sup. Ct. J. 273

so long as that decision is within the trial court's discretionary   If the appellant does not challenge the trial court's findings
authority. Beaumont Bank v. Buller, 806 S.W.2d 223, 226              of fact, when filed, these facts are binding upon both the
(Tex.1991); Downer v. *445 Aquamarine Operators, Inc.,               party and the appellate court. Wade v. Anderson, 602 S.W.2d
701 S.W.2d 238, 242 (Tex.1985).                                      347, 349 (Tex.Civ.App.—Beaumont 1980, writ ref'd n.r.e.).
                                                                     Accordingly, it is incumbent for the appellant to attack the
Under an abuse of discretion standard of review, the appellate       findings by appropriate legal and factual sufficiency points of
court does not review factual issues decided by the trial            error. Lovejoy v. Lillie, 569 S.W.2d 501, 504 (Tex.Civ.App.
court under legal or factual sufficiency standards. Crouch v.        —Tyler 1978, writ ref'd n.r.e.).
Tenneco, Inc., 853 S.W.2d 643, 649 (Tex.App.—Waco 1993,
writ denied). Under an abuse of discretion standard of review,       In an appeal of a nonjury trial, findings are specifically and
legal and factual sufficiency claims are not independent,            meaningfully tied to appropriate standards of appellate review
reversible grounds of error, but rather merely factors to            and are therefore truly beneficial to appellate review. See
consider in assessing whether the trial court abused its             Blackmon, 841 S.W.2d at 853.
discretion. Buller, 806 S.W.2d at 226. Under an abuse of
discretion standard of review, findings of fact and conclusions
of law are neither appropriate nor required. Crouch, 853
                                                                        III. DISMISSAL AS A DISCOVERY SANCTION
S.W.2d at 649.
                                                                     The appellate standard of review of a trial court order
An abuse of discretion does not exist if the trial court bases its   dismissing a case as a discovery sanction is abuse of
decision on conflicting evidence and some evidence supports          discretion. Blackmon, 841 S.W.2d at 852; TransAmerican
the trial court's decision. See Ruiz v. Conoco, Inc., 868 S.W.2d     Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 919 n. 9
752, 758 (Tex.1993). An abuse of discretion does not exist           (Tex.1991). Findings are neither appropriate nor required
if some evidence in the record shows the trial court followed        under an abuse of discretion standard. Crouch, 853 S.W.2d
guiding rules and statutes. Crouch, 853 S.W.2d at 649.               at 649. Findings are not tied to the appellate standard
                                                                     of review and are not necessarily beneficial to appellate
                                                                     review. Accordingly, under the rule I propose, I would hold
     B. EVIDENTIARY STANDARD OF REVIEW                               that findings and conclusions did not extend the appellate
                                                                     timetable in this case. I would affirm the court of appeals'
Legal and factual sufficiency of the evidence standards              judgment dismissing the appeal and deny the writ.
of review govern appeals of nonjury trials on the merits.
Blackmon, 841 S.W.2d at 852; Hall, Standards of Appellate
Review in Civil Appeals, 21 ST. MARY'S L.J. 865, 919–20
                                                                                         IV. CONCLUSION
(1990). When a party appeals from a nonjury trial, it must
complain of specific findings and conclusions of the trial           The Court asserts that the rule it adopts is better than the one
court, because a general complaint against the trial court's         I propose because it sometimes happens that the appellate
judgment does not present a justiciable question. Fiduciary          standard of review has not been finally determined. Thus, the
Mortgage Co. v. City Nat'l Bank, 762 S.W.2d 196, 204                 Court concludes that the standard I would apply is less certain
(Tex.App.—Dallas 1988, writ denied). Accordingly, findings           than the one it adopts. I beg to differ again.
of fact and conclusions of law are mandatory for a party to
file to avoid the onerous presumptions that apply in an appeal       There is a substantial body of statutory and case law
from a nonjury trial. When an appellant does not request or          that establishes appellate standards of review. Moreover,
file findings and conclusions by the trial court, the appellate      the bench and bar are fortunate to have available two
court presumes the trial court found all fact questions in           excellent *446 law review articles that put this body of law
support of its judgment, and the reviewing court must affirm         together for ready reference. See generally Hall, Standards
that judgment on any legal theory finding support in the             of Appellate Review in Civil Appeals, 21 ST. MARY'S L.J.
pleadings and evidence. Point Lookout West, Inc. v. Whorton,         865 (1990) and Hall, Revisiting Standards of Review in
742 S.W.2d 277, 278 (Tex.1987).                                      Civil Appeals, 24 ST. MARY'S L.J. 1045 (1993). “The law
                                                                     prescribing the standard of review to a particular ruling
                                                                     is complex but relatively well settled.” Hecht, Forward:



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IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (1997)
40 Tex. Sup. Ct. J. 273

Revisiting Standards of Review in Civil Appeals, 24 ST.
MARY'S L.J. 1041, 1041 (1993).
                                                                       All Citations

Today the Court needlessly establishes a new standard when             938 S.W.2d 440, 40 Tex. Sup. Ct. J. 273
existing standards will better solve the problem. I respectfully
dissent.

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 7
John v. State, 826 S.W.2d 138 (1992)




                                                                [2]   Eminent Domain
     KeyCite Yellow Flag - Negative Treatment                             Strict Compliance with Statutory
Declined to Extend by State v. Titan Land Development Inc.,           Requirements
 Tex.App.-Hous. (1 Dist.), June 11, 2015
                                                                      148 Eminent Domain
                      826 S.W.2d 138                                  148III Proceedings to Take Property and Assess
                  Supreme Court of Texas.                             Compensation
                                                                      148k167 Statutory Provisions and Remedies
         Paul F. JOHN, Lillie John and John's                         148k167(4) Strict Compliance with Statutory
                                                                      Requirements
        Welding & Construction, Inc., Petitioners,
                                                                      Procedures set forth in condemnation statute
                          v.
                                                                      must be strictly followed and its protections
           The STATE of Texas, Respondent.
                                                                      liberally construed for benefit of landowner.
                                                                      V.T.C.A., Property Code § 21.049.
            No. D–1557. | Feb. 26, 1992. |
            Rehearing Overruled April 22, 1992.                       15 Cases that cite this headnote
Landowners appeal from judgment of the District Court No.
274, Guadalupe County, Fred Moore, J., entered in eminent       [3]   Eminent Domain
domain proceeding. The San Antonio Court of Appeals                      Filing Report and Notice
affirmed, and landowners applied for writ of error. The               148 Eminent Domain
Supreme Court held that landowner's time to object to special         148III Proceedings to Take Property and Assess
commissioner's award in condemnation proceeding is tolled             Compensation
until clerk sends notice to landowner pursuant to statute             148k225 Assessment by Commissioners,
requiring clerk to send notice by next working day indicating         Appraisers, or Viewers
condemnation award.                                                   148k234 Report and Findings or Award
                                                                      148k234(5) Filing Report and Notice
Reversed and remanded.                                                Statute requiring clerk of court to send
                                                                      notification of special commissioner's decision
                                                                      in condemnation proceeding no later than
                                                                      next working day after day of decision is
 West Headnotes (6)                                                   mandatory because it is part of the statutory
                                                                      scheme authorizing eminent domain actions and
                                                                      is designed to protect landowner. V.T.C.A.,
 [1]     Eminent Domain
                                                                      Property Code § 21.049.
            Objections and Exceptions
          148 Eminent Domain                                          12 Cases that cite this headnote
          148III Proceedings to Take Property and Assess
          Compensation
          148k225 Assessment by Commissioners,                  [4]   Notice
          Appraisers, or Viewers                                           Requisites and Sufficiency of Formal
          148k235 Objections and Exceptions                           Notice in General
         Landowner's time to object to special                        277 Notice
         commissioner's award in condemnation                         277k9 Requisites and Sufficiency of Formal
         proceeding is tolled until clerk sends notice to             Notice in General
         landowner pursuant to statute requiring clerk                When statute provides method by which notice
         to send notice by next working day indicating                shall be given in particular instance, notice
         condemnation award. V.T.C.A., Property Code                  provision must be followed with reasonable
         § 21.049.                                                    strictness.

         5 Cases that cite this headnote                              4 Cases that cite this headnote




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John v. State, 826 S.W.2d 138 (1992)




 [5]    Action                                               Opinion
             Change of Character or Form
                                                             PER CURIAM.
        Eminent Domain
           Objections and Exceptions                          [1] This is a condemnation case. At issue is whether
        13 Action                                            landowners are entitled to notice providing an opportunity
        13II Nature and Form                                 to timely object after a condemnation award is filed with
        13k36 Change of Character or Form                    the trial court. The court of appeals held that Paul F.
        148 Eminent Domain                                   John, Lillie John and John's Welding & Construction Inc.
        148III Proceedings to Take Property and Assess
                                                             (collectively “the Johns”) did not file timely objections to the
        Compensation
                                                             condemnation award because the timetable for objecting to
        148k225 Assessment by Commissioners,
                                                             the award starts with the filing of the award, not the sending
        Appraisers, or Viewers
        148k235 Objections and Exceptions
                                                             or receiving of notice. A majority of this court holds that, in
        Filing timely objections in condemnation             a condemnation proceeding, the parties' time to object to the
        proceeding invokes jurisdiction of trial court       special commissioners' award is tolled until the clerk sends
        and transforms administrative proceeding into        the required notice pursuant to section 21.049 of the Texas
        pending cause. V.T.C.A., Property Code §             Property Code.
        21.049.
                                                             The state commenced an eminent domain action to
        4 Cases that cite this headnote                      condemn the property owned by the Johns. At the special
                                                             commissioners' hearing, on March 28, 1990, the Johns
                                                             received an award for the value of their property. On April
 [6]    Eminent Domain
                                                             2, 1990, the special commissioners' award was filed with the
           Objections and Exceptions
                                                             trial court. On April 3, 1990, the clerk should have sent notice
        148 Eminent Domain                                   to the Johns informing them that the commissioners' award
        148III Proceedings to Take Property and Assess
                                                             had been filed with the trial court. See Tex. Prop.Code §
        Compensation
                                                             21.049 (providing that the clerk shall send notice to the parties
        148k225 Assessment by Commissioners,
                                                             in the proceeding, by the next working day, indicating that the
        Appraisers, or Viewers
        148k235 Objections and Exceptions                    condemnation award had been filed with the trial court). On
        If objections are not timely filed in condemnation   April 25, 1990, the clerk finally sent the required notice to the
        proceeding, trial court can only perform its         Johns. Two days later, on April 27, 1990, the Johns filed their
        ministerial function and render judgment based       objections to the award and demanded a trial to determine the
        on special commissioner's award. V.T.C.A.,           value of the property.
        Property Code § 21.049.
                                                             The trial court held that it did not have jurisdiction to consider
        11 Cases that cite this headnote                     the merits of the case without timely objections and could
                                                             only perform its ministerial function of entering judgment
                                                             based upon the commissioners' award. See Tex. Prop.Code
                                                             § 21.018(a) (providing that objections to the condemnation
Attorneys and Law Firms                                      award must be filed on or before the Monday next following
                                                             the twentieth day after the day the commissioners file their
 *139 Bennie Bock, II, New Braunfels, Laura Cavaretta, and   findings with the court). The court of appeals affirmed the
Paul M. Green, San Antonio, for petitioners.                 judgment of the trial court on the basis that the Johns did
                                                             not file timely objections. To support that result, the court of
George R. Jennings, and Mark Heidenheimer, Austin, for       appeals compared section 21.049 of the Texas Property Code
respondent.                                                  to rule 239a of the Texas Rules of Civil Procedure which
                                                             governs default judgments. 1 The notice requirement of rule
                                                             239a has been considered directory, rather than mandatory.
                                                             See Petro–Chemical Transport, Inc. v. Carroll, 514 S.W.2d


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John v. State, 826 S.W.2d 138 (1992)


240, 244–45 (Tex.1974) (the clerk's failure to send required                    special commissioners] is filed, the
notice does not affect the *140 finality of the judgment                        clerk shall send notice of the decision
but such a failure may be a predicate for bill of review);                      by certified or registered United States
see also Bloom v. Bloom, 767 S.W.2d 463, 468 (Tex.App.                          mail, return receipt requested, to the
—San Antonio 1989, writ denied) (the clerk's failure to                         parties in the proceeding, or to their
provide the required notice, pursuant to rule 239a, does                        attorneys of record, at their addresses
not constitute reversible error). Thus, reasoning that section                  of record.
21.049 is likewise directory, the court of appeals held that the
clerk's failure to comply with the notice provision does not        Tex.Prop.Code § 21.049. In contrast to rule 239a, this section
toll the timetable for objecting to the commissioners' award.       must be construed as mandatory because it is part of the
                                                                    statutory scheme authorizing eminent domain actions and it
1                                                                   is designed to protect the landowner. Moreover, since the
       Rule 239a of the Texas Rules of Civil Procedure
                                                                    language of the statute is clear and unambiguous, it should be
       provides, in part, that “[i]mediately upon the signing of
                                                                    enforced as written, giving its terms their usual and ordinary
       the judgment, the clerk shall mail written notice thereof
       to the party against whom the judgment was rendered....”
                                                                    meaning, and without resorting to the rules of construction.
                                                                    See Balios v. Texas Dep't of Pub. Safety, 733 S.W.2d 308,
 [2] Contrary to the court of appeals' analysis, the notice
                                                                    310 (Tex.App.—Amarillo 1987, writ ref'd). 3 Therefore, in
requirements of section 21.049 of the Texas Property Code
                                                                    condemnation cases, the clerk must comply with the notice
and rule 239a of the Texas Rules of Civil Procedure are
                                                                    provisions.
not analogous. Default judgments are distinguishable for
two reasons. First, rule 239a specifically states that “failure
                                                                    3      The state argues that the notice provision of section
to comply with the provisions of the rule shall not affect
the finality of the judgment.” Tex.R.Civ.P. 239a. Thus,                    21.049 is directory rather than mandatory because
unlike section 21.049 of the Texas Property Code, the notice               Senator McFarland stated, during the floor debate on the
                                                                           revised property code, that this bill is “a nonsubstantive
requirement is directory by the express language of rule
                                                                           codification.” 2nd and 3rd Reading of Senate Bill 49
239a. 2 Second, in a condemnation action, the landowner                    on the Senate Floor, p. 2, 1. 23–24. In 1983, during
is given a single opportunity to recover damages for the                   the first called session, the Legislature amended art.
taking of his property by the state for the public benefit.                3265 § 5 to require notice to the parties, by the next
Coastal Indust. Water Auth. v. Celanese Corp. of Am., 592                  working day, indicating that the condemnation award
S.W.2d 597, 599 (Tex.1979). As a result, the procedures set                had been filed with the trial court. Act of June 19,
forth in the condemnation statute must be strictly followed                1983, H.B. No. 1118, § 5, 68th Legislature, 1st C.S.,
and its protections liberally construed for the benefit of the             ch. 838, 1983 Tex.Gen.Laws 4766. During the second
landowner. See Rotello v. Brazos County Water Control &                    call of the same session, the legislature incorporated
Improvement Dist., 574 S.W.2d 208, 212 (Tex.Civ.App.—                      this change into the Property Code. Act of 1984, S.B.
                                                                           49, § 1(d), 68th Legislature, 2nd C.S., ch. 18, 1984
Houston [1st Dist.] 1978, no writ). See also Coastal Indust.
                                                                           Tex.Gen.Laws 95 (codified as Tex.Prop.Code § 21.049.)
Water Auth., 592 S.W.2d at 599; Walling v. State, 394 S.W.2d
                                                                           Thus, the substantive change occurred prior to the 1984
38, 40 (Tex.Civ.App.—Waco 1965, writ ref'd n.r.e.).
                                                                           codification.
                                                                              Furthermore, the express language of the statute
2      When a defaulting party does not receive any actual or                 states that the clerk “shall” send notice to the
       official notice, rule 306a(4) of the Texas Rules of Civil              parties in the condemnation proceeding. Shall “is an
       Procedure provides a limited extension of time before                  imperative term, by ordinary meaning, and requires
       the judgment becomes final and the trial court loses its               the performance of the act to be performed. Thus,
       plenary power. After that limited extension of time has                it should be treated as a mandatory term, unless it
       lapsed, the clerk's failure to send notice will not affect             is apparent that the legislature intended otherwise.”
       the finality of the judgment. Tex.R.Civ.P. 239a.                       Balios v. Texas Dep't of Pub. Safety, 733 S.W.2d 308,
                                                                              310 (Tex.App.—Amarillo 1987, writ ref'd) (citations
 [3] One such procedure is section 21.049 of the Texas
                                                                              omitted).
Property Code, which mandates that:
                                                                     [4] [5] [6] In light of section 21.049 of the Texas Property
             [N]ot later than the next working day                  Code, the court of appeals *141 incorrectly applied Dickey
             after the day the decision [by the                     v. City of Houston, 501 S.W.2d 293 (Tex.1973) which held


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     3
John v. State, 826 S.W.2d 138 (1992)


                                                                              Dist.] 1978, no writ). By sending notice to the Johns after
that a landowner who received notice of the condemnation
                                                                              their time to object had lapsed, the clerk failed to follow
was charged with the duty to “take cognizance” of subsequent
                                                                              the notice requirement with reasonable strictness.
acts of the commissioners including making an award,
returning it to the trial court, and having the trial court           5       Filing timely objections invokes the jurisdiction of the
enter the judgment unless timely objections were filed. Id.                   trial court and transforms the administrative proceeding
at 294. After Dickey, the legislature passed this mandatory                   into a pending cause. Pearson v. State, 159 Tex. 66,
provision, Tex.Prop.Code § 21.049, which supplanted the                       315 S.W.2d 935, 937 (1958); see Seiler v. Intrastate
holding in Dickey and required the clerk to send notice to                    Gathering Corp., 730 S.W.2d 133, 137 (Tex.App.—San
                                                                              Antonio 1987, no writ). If objections are not filed timely,
the landowner, by the next working day, confirming that
                                                                              the trial court can only perform its ministerial function
the condemnation award had been filed with the trial court.
                                                                              and render judgment based upon the commissioner's
Thus, notice of the condemnation hearing is not sufficient
                                                                              award. See Pearson, 315 S.W.2d at 938. However, the
notice that the landowners' time to object to the condemnation
                                                                              clerk's failure to send notice tolls the landowner's time to
award has begun to run. In the case at bar, the clerk failed                  object. Therefore, in the case at bar, the trial court had
to notify the Johns that the special commissioners' award had                 jurisdiction to consider the merits of the case because the
been filed with the court until after the deadline to object                  Johns filed timely objections. Cf. Packer v. Fifth Court
had passed. 4 As a result, the Johns' time to object to the                   of Appeals, 764 S.W.2d 775 (Tex.1989).
special commissioners' award is tolled until the clerk sends          Accordingly, pursuant to Tex.R.App.P. 170, without hearing
the required notice pursuant to section 21.049 of the Texas           oral argument, a majority of this court grants the Johns'
Property Code. 5                                                      application for writ of error, reverses the judgment of the court
                                                                      of appeals, and remands the cause to the trial court for further
4                                                                     proceedings consistent with this opinion.
       When a statute provides the method by which notice shall
       be given in a particular instance, the notice provision
       must be followed with reasonable strictness. See Rotello
                                                                      All Citations
       v. Brazos County Water Control & Improvement Dist.,
       574 S.W.2d 208, 212 (Tex.Civ.App.—Houston [1st
                                                                      826 S.W.2d 138

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                           4
Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013)
2013 WL 6672494

                                                                        148k235 Objections and exceptions
                                                                        Electric company's time to file objections
                     2013 WL 6672494
                                                                        to the special commissioners' damages award
       Only the Westlaw citation is currently available.
                                                                        to landowner in condemnation action was
          SEE TX R RAP RULE 47.2 FOR                                    tolled until the trial court clerk mailed the
    DESIGNATION AND SIGNING OF OPINIONS.                                notice of decision to company, as required by
                                                                        condemnation statute, and because the trial court
               MEMORANDUM OPINION                                       clerk never mailed the notice as required by
                Court of Appeals of Texas,                              statute, company's time to file objections to
                      San Antonio.                                      the commissioners' award was tolled. V.T.C.A.,
                                                                        Property Code § 21.049.
         ONCOR ELECTRIC DELIVERY
            COMPANY LLC, Appellant                                      Cases that cite this headnote
                       v.
  James Milton James Milton SCHUNKE, Appellee.                   [2]    Eminent Domain
                                                                           Filing report and notice
          No. 04–13–00067–CV.          |   Dec. 18, 2013.
                                                                        148 Eminent Domain
Synopsis                                                                148III Proceedings to Take Property and Assess
Background: Electric company filed a condemnation                       Compensation
                                                                        148k225 Assessment by Commissioners,
petition. Special commissioners awarded landowner
                                                                        Appraisers, or Viewers
$367,000.00 in damages for the condemnation of his
                                                                        148k234 Report and Findings or Award
land. Landowner filed a motion seeking judgment on the
                                                                        148k234(5) Filing report and notice
commissioners' award. The 35th Judicial District Court,
                                                                        Where attorney for electric company gave the
Mills County, Stephen Ellis, J., concluded that company's
                                                                        notice of special commissioners' decision to
objections to commissioners' award were untimely filed,
                                                                        the trial court clerk, who filed the notice and
granted landowner's motion, and rendered judgment on the
                                                                        handed company's attorney a file-stamped copy
commissioners' award. Company appealed.
                                                                        of the notice, the act of handing file-stamped
                                                                        copy of the notice of decision to one of
                                                                        company's attorneys did not satisfy the clerk's
[Holding:] The Court of Appeals, Karen Angelini, J.,                    mandatory duty to mail the notice to the parties or
held that company's time to file objections to the special              their attorneys pursuant to condemnation statute.
commissioners' damages award was tolled until the trial court           V.T.C.A., Property Code § 21.049.
clerk mailed the notice of decision to company, as required
by condemnation statute.                                                Cases that cite this headnote



Reversed and remanded.
                                                                From the 35th Judicial District Court, Mills County, Texas,
                                                                Trial Court No. 11–04–6278, Stephen Ellis, Judge.
 West Headnotes (2)                                             Attorneys and Law Firms

                                                                Joann N. Wilkins, Lance Cooper Travis, Burford & Ryburn,
 [1]       Eminent Domain
                                                                Dallas, TX, for Appellant.
              Objections and exceptions
           148 Eminent Domain                                   Luke Ellis, Jons, Marrs, Ellis, and Hodge, LLP, Austin, TX,
           148III Proceedings to Take Property and Assess       for Appellee.
           Compensation
           148k225 Assessment by Commissioners,                 Sitting: KAREN ANGELINI, Justice, MARIALYN
           Appraisers, or Viewers                               BARNARD, Justice, REBECA C. MARTINEZ, Justice.


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013)
2013 WL 6672494

                                                                     decision to Oncor's attorneys of record. Oncor filed objections
                                                                     to the commissioners' award on October 19, 2011.
               MEMORANDUM OPINION
                                                                     Thereafter, Schunke filed a motion seeking judgment on
Opinion by KAREN ANGELINI, Justice.                                  the commissioners' award. In the motion, Schunke argued
                                                                     the trial court was required to render judgment on the
 *1 Oncor Electric Company LLC appeals from a                        commissioners' award because Oncor failed to file its
judgment rendered on a special commissioners' award in               objections in a timely manner. According to Schunke, Oncor's
a condemnation case. We conclude the trial court erred               objections were due on October 17, 2011, which was the first
in rendering judgment on the commissioners' award. We
                                                                     Monday following the twentieth day after the commissioners'
therefore reverse and remand for further proceedings.                award was filed with the trial court clerk.

                                                                     The trial court held a hearing on Schunke's motion. At the
                       BACKGROUND                                    hearing, a trial court clerk testified that the notice of the
                                                                     commissioners' decision was not sent to Oncor in the manner
A condemnation action begins as an administrative                    specified by the property code. Nevertheless, Schunke argued
proceeding and, if necessary, may be converted to a                  that the clerk's failure to send the notice of decision to
judicial proceeding. City of Tyler v. Beck, 196 S.W.3d               Oncor in the manner specified by the property code did not
784, 786 (Tex.2006). To begin a condemnation action, a               toll Oncor's time for filing objections because the relevant
condemning entity files a petition in the appropriate trial          property code provisions were designed to protect landowners
court. Id.;State v. Garland, 963 S.W.2d 95, 97 (Tex.App.-            rather than condemning entities. Schunke further argued that
Austin 1998, pet. denied). The trial court then appoints             Oncor had actual notice of the filing of the notice of decision.
special commissioners, who conduct a hearing and determine           In response, Oncor argued its objections were not untimely
just compensation. Beck, 196 S.W.3d at 786; Garland, 963             because the property code required the clerk to mail the notice
S.W.2d at 97.Any party to a condemnation action may object           of decision to the parties or their attorneys of record and the
to the commissioners' award by filing written objections with        clerk failed to do so. Furthermore, Oncor claimed that it relied
the court. Beck, 196 S.W.3d at 786; Garland, 963 S.W.2d              on the law stating that the time for filing objections was tolled
at 97.If any party timely files objections, the commissioners'       until the clerk mailed the notice of decision to the parties or
award is vacated and the administrative proceeding becomes           their attorneys of record. The trial court concluded Oncor's
a judicial proceeding.Beck, 196 S.W.3d at 786; Garland,              objections were untimely filed, granted Schunke's motion,
963 S.W.2d at 97.However, if no objections are filed, or if          and rendered judgment on the commissioners' award. Oncor
objections are untimely filed, the trial court does not acquire      appealed.
jurisdiction beyond its ministerial duty to render judgment on
the commissioners' award. Garland, 963 S.W.2d at 97 (citing
Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 938 (1958)).
                                                                                             DISCUSSION
In this case, Oncor filed a condemnation petition in the district     *2 On appeal, Oncor argues its objections were timely filed
court in Mills County, Texas. In its petition, Oncor sought to       and therefore the trial court erred in rendering judgment on the
condemn land owned by James Milton Schunke. The district             commissioners' award. Two provisions of the Texas property
court appointed special commissioners, who heard the case            code are central to the issue presented in this appeal. The first
and decided to award Schunke $367,000.00 in damages for              provision, section 21.049, states:
the condemnation of his land. Oncor filed the commissioners'
award and a notice of the commissioners' decision with                            The judge of a court hearing a
the trial court clerk on September 26, 2011. The notice of                        proceeding under this chapter shall
decision instructed the trial court clerk to mail, by certified or                inform the clerk of the court as to a
registered mail, a copy of the notice to Schunke's and Oncor's                    decision by the special commissioners
attorneys of record. On September 28, 2011, the trial court                       on the day the decision is filed or on
clerk mailed a copy of the notice of decision to Schunke's                        the next working day after the day the
attorneys of record, but she did not mail a copy of the notice of                 decision is filed. Not later than the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013)
2013 WL 6672494

            next working day after the day the                       no writ), disapproved of on other grounds byState v. Bristol
            decision is filed, the clerk shall send                  Hotel Asset Co., 65 S.W.3d 638, 642 (Tex.2001)).
            notice of the decision by certified or
            registered United States mail, return                     *3 [1] Here, it is undisputed that the trial court clerk never
            receipt requested, to the parties in the                 sent notice to Oncor as required by section 21.049. A deputy
            proceeding, or to their attorneys of                     clerk testified that one of Oncor's attorneys gave her the notice
            record, at their addresses of record.                    of decision for filing, she filed the notice of decision, and
                                                                     handed the attorney a file-stamped copy of the notice. The
TEX. PROP.CODE ANN. § 21.049 (West 2000). The second                 clerk also testified that she mailed a copy of the notice of
provision, section 21.018, states:                                   decision to Schunke's attorney, but she never mailed a copy
                                                                     to Oncor's attorney because it was her understanding that she
  (a) A party to a condemnation proceeding may object to the
                                                                     did not need to mail the notice to the condemning entity. The
  findings of the special commissioners by filing a written
                                                                     clerk further testified that no one else in her office mailed a
  statement of the objections and their grounds with the court
                                                                     copy of the notice to Oncor because it would have been noted
  that has jurisdiction of the proceeding. The statement must
                                                                     in the file.
  be filed on or before the first Monday following the 20th
  day after the day the commissioners file their findings with
                                                                     Applying John to these facts, we conclude Oncor's time to
  the court.
                                                                     file objections to the commissioners' award was tolled until
  (b) If a party files an objection to the findings of the special   the trial court clerk mailed the notice of decision as required
  commissioners, the court shall cite the adverse party and          by section 21.049. See John, 826 S.W.2d at 139 (“A majority
  try the case in the same manner as other civil causes.             of this court holds that, in a condemnation proceeding, the
                                                                     parties' time to object to the special commissioners' award
TEX. PROP.CODE ANN. § 21.018 (West 2003).                            is tolled until the clerk sends the required notice pursuant
                                                                     to section 21.049 of the Texas Property Code.”); Garland,
These provisions were construed by the Texas Supreme Court           963 S.W.2d at 101 (holding that the timetable for filing
in John v. State, 826 S.W.2d 138 (Tex.1992).Section 21.049           objections begins when the commissioners' decision is filed
requires the trial court clerk to mail the notice of decision        with the trial court, subject to tolling if proper notice is not
to the parties not later than the next working day after the         sent). Because the trial court clerk never mailed the notice as
day the decision is filed. TEX. PROP.CODE ANN. § 21.049.             required under section 21.049, Oncor's time to file objections
In John, the trial court clerk failed to mail the notice of          to the commissioners' award was tolled.
the commissioners' decision to the landowners in the time
period specified in the statute. 826 S.W.2d at 139.Instead,           [2] Despite the rule articulated in John, Schunke claims
the clerk mailed the notice twenty-two days late, which              that Oncor's objections were untimely filed. Schunke argues
was after the time for filing objections had passed under            that John does not apply to this case because Oncor had
section 21.018(a).Id. Two days after the clerk mailed the            actual notice of the filing of the notice of the commissioners'
notice of decision, the landowners filed their objections.           decision. Specifically, Oncor's lawyer gave the notice of
Id. The Texas Supreme Court held that the landowners'                decision to the trial court clerk, who filed the notice
objections were timely filed because the time to object to the       and handed Oncor's attorney a file-stamped copy of the
commissioners' award was tolled until the clerk mailed the           notice. 1 We disagree with Schunke's assertion that the act of
notice of decision as required under section 21.049. Id. The         handing a file-stamped copy of the notice of decision to one
Texas Supreme Court construed section 21.049 as mandatory,           of Oncor's attorneys satisfied the clerk's mandatory duty to
concluding that “in condemnation cases, the clerk must               mail the notice to the parties or their attorneys under section
comply with the notice provisions.”Id. at 140. In reaching its       21.049. Section 21.049, which makes no mention of actual
holding, the Texas Supreme Court noted that when a statute           notice, specifies the manner in which notice is to be provided,
provides the method by which notice shall be given in a              stating “the clerk shall send notice of the decision by certified
particular instance, the notice provision must be followed           or registered United States mail, return receipt requested, to
with reasonable strictness. Id. at 141 n. 4 (citing Rotello v.       the parties in the proceeding, or to their attorneys of record,
Brazos Cnty. Water Control and Improvement Dist. No. 1,              at their addresses of record.”SeeTEX. PROP.CODE ANN.
574 S.W.2d 208, 212 (Tex.App.-Houston [1st Dist.] 1978,              § 21.049. As the Texas Supreme Court stated in John, the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
Oncor Elec. Delivery Co. LLC v. Schunke, Not Reported in S.W.3d (2013)
2013 WL 6672494

                                                                     equitable tolling and because Oncor judicially admitted
requirements set out in section 21.049 must be followed with
                                                                     that the commissioners' award was filed with the clerk on
reasonable strictness. John, 826 S.W.2d at 141 n. 4.
                                                                     September 26, 2011. We find these arguments unconvincing.
1                                                                    First, under the rule articulated in John, Oncor was
       Apparently, the practice of a party filing the notice
                                                                     not required to satisfy the requirements for equitable
       of decision on behalf of the commissioners is not
                                                                     tolling. Second, any admission concerning the date the
       unusual. A similar practice was described in State v.
                                                                     commissioners' award was filed does not change the fact that
       Garland, 963 S.W.3d 95, 99 (Tex.App.-Austin 1998,
       no pet.)(“We are informed ... that a representative of
                                                                     the time to file objections was tolled until the clerk mailed
       the condemnor typically offers to carry out the actual        notice to the parties or their attorneys as required by section
       filing of the document, and that such offer is usually        21.049.
       accepted by the commissioners. We see no reason why
       the commissioners may not authorize another person,           In sum, the clerk's act of handing a file-stamped copy of the
       including a party to the proceeding, to fulfil[l] this        notice of decision to one of Oncor's attorneys did not satisfy
       responsibility.”).                                            the clerk's duty to mail the notice of decision as required by
Schunke next argues this case warrants a departure from              section 21.049. Moreover, Oncor was entitled to rely on the
the rule articulated in John because the clerk failed to             rule articulated in John, which provides that the time for filing
send notice to the condemning entity as opposed to the               objections to the commissioners' award is tolled until the clerk
landowner. Schunke points out that John was based in                 mails notice to the parties or their attorneys as required by
part on the principle that condemnation statutes are to be           section 21.049. See 826 S.W.2d at 139.
liberally construed for the benefit of the landowner. Id. at
140.However, John was also based on the principle that
statutes that are clear and unambiguous must be enforced                                    CONCLUSION
as written. Id. (“Moreover, since the language of the statute
is clear and unambiguous, it should be enforced as written,          The trial court erred in concluding Oncor's objections
giving its terms their usual and ordinary meaning, and without       were untimely filed and in rendering judgment on the
resorting to the rules of construction.”). Notably, section          commissioners' award. Because Oncor's objections were
21.049 does not direct the clerk to mail the notice to the           timely filed, the administrative condemnation proceeding was
landowner only. Rather, section 21.049 expressly requires the        converted to a judicial condemnation proceeding. Therefore,
clerk to mail the notice “to the parties in the proceeding, or       the trial court's judgment is REVERSED, and this case is
to their attorneys of record.”SeeTEX. PROP.CODE ANN. §               REMANDED to the trial court for further proceedings.
21.049 (emphasis added).

 *4 Schunke further argues that Oncor's objections were              All Citations
untimely because Oncor failed to satisfy the requisites for
                                                                     Not Reported in S.W.3d, 2013 WL 6672494

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900




     KeyCite Yellow Flag - Negative Treatment                               Reversed and remanded.
Distinguished by In re Bliss & Glennon, Inc.,   Tex.App.-Hous. (1 Dist.),
 January 7, 2014                                                            Willett, J., concurred in part and filed opinion.
                       341 S.W.3d 919
                   Supreme Court of Texas.
                                                                             West Headnotes (5)
             Larry ROCCAFORTE, Petitioner,
                           v.
             Jefferson COUNTY, Respondent.                                   [1]     Appeal and Error
                                                                                        Judgment
             No. 09–0326. | Argued Oct. 14,                                          30 Appeal and Error
            2010. | Decided April 29, 2011.                                          30V Presentation and Reservation in Lower Court
                                                                                     of Grounds of Review
Synopsis                                                                             30V(B) Objections and Motions, and Rulings
Background: Former chief deputy constable brought §                                  Thereon
1983 wrongful termination action against county, county                              30k223 Judgment
constable, and county employees. After jury returned a                               Even if court erred in rendering final judgment
verdict in favor of former chief with respect to the claims                          after it had issued a stay in proceedings
against constable, the 136th District Court, Jefferson County,                       pending an interlocutory appeal by plaintiff,
Milton G. Shuffield, J., granted county's plea to jurisdiction,                      former chief deputy constable waived such
and former chief brought interlocutory appeal. While                                 error in wrongful termination action brought by
interlocutory appeal was pending, the District Court rendered                        former chief deputy constable against county
final judgment against constable. Constable appealed, and                            and other constable; trial court's final judgment
former chief cross-appealed. The Beaumont Court of Appeals                           was voidable, rather than void, and former chief
affirmed in part, reversed in part, and rendered judgment                            deputy constable failed to object to entry of final
that former chief take nothing. In the interlocutory appeal,                         judgment.
the Beaumont Court of Appeals, 281 S.W.3d 230, modified
the dismissal order to reflect that the dismissal was without                        4 Cases that cite this headnote
prejudice and affirmed the order as modified. Former chief
petitioned for review.                                                       [2]     Appeal and Error
                                                                                        Nature and grounds of right
                                                                                     30 Appeal and Error
Holdings: The Supreme Court, Jefferson, C.J., held that:                             30IV Right of Review
                                                                                     30IV(A) Persons Entitled
[1] even if court erred in rendering final judgment after it had                     30k136 Nature and grounds of right
issued a stay in proceedings, former chief waived such error;                        The right of appeal should not be lost due to
                                                                                     procedural technicalities.
[2] Court of Appeals would treat interlocutory appeal that was
                                                                                     1 Cases that cite this headnote
pending when trial court issued a final judgment as an appeal
from the final judgment;
                                                                             [3]     Appeal and Error
[3] provision in statute requiring notice of suit against county                         Interlocutory Proceedings Brought Up in
via mail was not a jurisdictional requirement; and                                   General
                                                                                     30 Appeal and Error
[4] provision in statute requiring notice of suit against county                     30XVI Review
via mail was satisfied by hand-delivery of notice.                                   30XVI(B) Interlocutory, Collateral, and
                                                                                     Supplementary Proceedings and Questions




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       1
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

        30k869 On Appeal from Final Judgment                             against county and other constable. V.T.C.A.,
        30k870 Interlocutory Proceedings Brought Up in                   Local Government Code § 89.0041.
        General
        30k870(1) In general                                             5 Cases that cite this headnote
        Court of Appeals would treat interlocutory
        appeal that was pending when trial court
        issued a final judgment as an appeal from
        the final judgment; claims against defendant             Attorneys and Law Firms
        that were subject matter of interlocutory appeal
        were not severed prior to entry of final                 *920 Laurence W. Watts, Watts & Associates, P.C.,
        judgment, defendant remained a party to the              Missouri City, TX, Brandon David Mosley, Cowan &
        underlying proceeding, and final judgment                Lemmon, LLP, Houston, TX, for Larry Roccaforte.
        implicitly modified the interlocutory order,
        which merged with it. Rules App.Proc., Rule              Thomas F. Rugg, District Attorney's Office, First Assistant
        27.3.                                                    —Civil Div., Steven L. Wiggins, Jefferson County District
                                                                 Attorney Office, Thomas E. Maness, Criminal District
        16 Cases that cite this headnote                         Attorney, Beaumont, TX, for Jefferson County.

                                                                 Todd K. Sellars, Dallas County Assistant Attorney, Dallas,
 [4]    Counties                                                 TX, for Amicus Curiae Dallas County, Texas.
           Notice, Demand, or Presentation of Claim
        104 Counties                                             Opinion
        104XII Actions
                                                                 Chief Justice JEFFERSON delivered the opinion of the Court,
        104k211 Conditions Precedent
        104k213.5 Notice, Demand, or Presentation of             joined by Justice HECHT, Justice WAINWRIGHT, Justice
        Claim                                                    MEDINA, Justice GREEN, Justice JOHNSON, Justice
        104k213.5(1) In general                                  GUZMAN, and Justice LEHRMANN, and joined by Justice
        Provision in statute governing local government          WILLETT as to parts I through III.
        providing that, upon motion by the defendant, an
                                                                 The Local Government Code requires a person suing a county
        action against a county or county official must
                                                                 to give the county judge and the county or district attorney
        be dismissed if plaintiff failed to provide written
                                                                 notice of the claim. TEX. LOC. GOV'T CODEE § 89.0041.
        notice via mail to the county judge or district
                                                                 The plaintiff provided that notice here, but did so by personal
        attorney, was not a jurisdictional requirement.
                                                                 service of process, rather than registered or certified mail as
        V.T.C.A., Local Government Code § 89.0041.
                                                                 the statute contemplates. We conclude that when the requisite
        4 Cases that cite this headnote                          county officials receive timely notice enabling them to answer
                                                                 and defend the claim, the case should not be dismissed.
                                                                 Because the court of appeals concluded otherwise, we reverse
 [5]    Counties
                                                                 its judgment and remand the case to the trial court for further
           Service or presentation; timeliness
                                                                 proceedings.
        104 Counties
        104XII Actions
        104k211 Conditions Precedent                             I. Background
        104k213.5 Notice, Demand, or Presentation of             Former Chief Deputy Constable Larry Roccaforte sued
        Claim                                                    Jefferson County and Constable Jeff Greenway, alleging that
        104k213.5(2) Service or presentation; timeliness
                                                                 his wrongful termination deprived him of rights guaranteed
        Statute requiring that a plaintiff filing suit against
                                                                 by the Texas Constitution. Roccaforte personally served
        a county or county official must provide notice of
                                                                 County Judge Carl Griffith with the suit, and fifteen days
        suit via mail to county judge or district attorney
                                                                 later, the County (represented by the district attorney) and
        was satisfied by hand-delivery of notice, rather
                                                                 Constable Greenway answered, denying liability. The County
        than delivery by mail, in wrongful termination
                                                                 propounded written discovery requests, deposed Roccaforte,
        action brought by former chief deputy constable


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

and presented County officials for depositions. The County
also filed a plea to the jurisdiction, asserting that Roccaforte               Roccaforte notes that immediately
did not give requisite notice of the suit. See TEX. LOC.                       after the dismissal order, the trial of the
GOV'T CODEE § 89.0041. Roccaforte disagreed, arguing                           case proceeded to judgment without
that the statute applied only to contract claims. Alternatively,               the County as a party. No one disputes
he argued that 42 U.S.C. § 1983 preempted the notice                           that all the claims against all other
requirements and that he substantially complied with them in                   parties have been resolved. The order
any event.                                                                     of dismissal is therefore appealable
                                                                               whether or not the statute at issue is
Although the trial court indicated that it would sustain the                   jurisdictional.
County's plea and sever those claims from the underlying
                                                                   281 S.W.3d 230, 231 n. 1. The court ultimately concluded
case, it did not immediately sign an order doing so. In the
                                                                   that Roccaforte's failure to notify the County of the suit by
meantime, Roccaforte tried his claims against Greenway. A
                                                                   registered or certified mail mandated dismissal of his suit
jury returned a verdict in Roccaforte's favor. Afterwards, the
                                                                   against the County, but not because the trial court lacked
trial court signed an order granting the County's jurisdictional
                                                                   jurisdiction. Id. at 236–37. Accordingly, the court modified
plea. The order did not sever the claims from the underlying
                                                                   the dismissal order to reflect that dismissal was without
case. Roccaforte then pursued this interlocutory appeal. His
                                                                   prejudice and affirmed the order as modified. Id.
notice of appeal stated that “[p]ursuant to Civ. P. Rem.Code §
51.014(b), all proceedings are *921 stayed in the trial court
                                                                   Roccaforte petitioned this Court for review, which we
pending resolution of the appeal.” But the proceedings were
not stayed.                                                        granted. 2 53 Tex.Sup.Ct.J. 1061 (Aug. 27, 2010).


In the underlying case, Greenway moved for judgment                2      Dallas County submitted an amicus curiae brief in
notwithstanding the verdict, which the trial court granted                support of Jefferson County.
as to Roccaforte's property interest and First Amendment
retaliation claims but denied as to Roccaforte's claimed           II. Did the trial court's final judgment moot this
violation of his liberty interest. Roccaforte moved for            interlocutory appeal?
entry of judgment. Notwithstanding the statutory stay              Before turning to the merits, we must decide a procedural
referenced in Roccaforte's notice of appeal, the trial court       matter: What happens when a party perfects an appeal of
rendered judgment for Roccaforte and awarded damages,              an interlocutory judgment that has not been severed from
attorney's fees, and costs. The judgment was titled “FINAL         the underlying action, and that action proceeds to trial and
JUDGMENT”; it “denie[d] all relief no [sic] granted in this        a final judgment? The trial court did not sever Roccaforte's
judgment”; and it stated “[t]his is a FINAL JUDGMENT.”             claims against the County 3 and denied “all relief not granted”
The County was included in the case caption. No one objected       in its final judgment. Ordinarily, under these circumstances,
to the continuation of trial court proceedings despite the         Roccaforte would have to complain on appeal that the
statutory stay.                                                    trial court erroneously dismissed those claims. Roccaforte,
                                                                   however, did not complain about the County's dismissal in
Greenway appealed, and Roccaforte cross-appealed, raising          his appeal from the final judgment. His separate interlocutory
as his only issues complaints regarding the trial court's          appeal, then, rests on a precipice of mootness.
JNOV on his claims against Greenway. The court of appeals
affirmed in part and reversed in part, rendering judgment          3      “As a rule, the severance of an interlocutory judgment
that Roccaforte take nothing. Greenway v. Roccaforte, 2009
                                                                          into a separate cause makes it final.” Diversified Fin.
WL 3460683, at *6, 2009 Tex.App. LEXIS 8290, at *15                       Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz, P.C.,
(Tex.App.-Beaumont 2009, pet. denied). 1                                  63 S.W.3d 795, 795 (Tex.2001) (per curiam).


1      Today, we deny that petition for review.                     *922 A. Roccaforte waived any complaint about the
                                                                   trial court's actions during the statutory stay.
In Roccaforte's separate interlocutory appeal, the court of
                                                                   Although Roccaforte's interlocutory appeal was supposed to
appeals made the following notation:
                                                                   stay all proceedings in the trial court pending resolution of



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    3
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

the appeal, 4 Roccaforte did not object to the trial court's       Escalante, 251 S.W.3d at 725. In Henry, the court held
rendition of judgment while the stay was in effect. To the         that a party's failure to object to the trial court's action in
contrary, he affirmatively moved for entry of judgment.            violation of the stay waived any error resulting from that
Because a final judgment frequently moots an interlocutory         action. Henry, 2005 WL 1320121, at *1–2, 2005 Tex.App.
                                                                   LEXIS 4310, at *4 (holding that trial court's grant of summary
appeal, 5 we must decide whether the trial court's failure to
                                                                   judgment mooted interlocutory appeal challenging denial of
observe the stay made the final judgment void or merely
                                                                   special appearance). We find particularly instructive a case
voidable. If the final judgment is void, it would have no
                                                                   involving a trial court's rendition of final judgment while
impact on this interlocutory appeal. Lindsay v. Jaffray, 55
                                                                   an interlocutory appeal of a class certification order was
Tex. 626 (Tex.1881) (“A void judgment is in legal effect
                                                                   pending:
no judgment.”) (quoting FREEMAN ON JUDGMENTS, §
117). 6 If voidable, then we must decide whether it moots this                 [I]f a trial court proceeds to trial
proceeding. See Travelers Ins. Co. v. Joachim, 315 S.W.3d                      during the interlocutory appeal, the
860, 863 (Tex.2010) (observing that voidable orders must be                    class action plaintiff must inform
corrected by direct attack and, unless successfully attacked,                  the court of section 51.014(b) and
become final). We conclude it is voidable.                                     request that the stay be enforced. If
                                                                               a court proceeds to trial over the
4      TEX. CIV. PRAC. & REM.CODE § 51.014(b); see                             objection of a class action plaintiff, the
       also TEX.R.APP. P. 29.5 (providing that “[w]hile an                     class action plaintiff could request a
       appeal from an interlocutory order is pending, the                      mandamus and this court would grant
       trial court retains jurisdiction of the case and unless                 it. However, if the class action plaintiff
       prohibited by statute may make further orders, including                fails to inform the trial court of section
       one dissolving the order complained of on appeal”)                      51.014(b), and allows the court to
       (emphasis added).                                                       proceed to trial, as happened here, the
5                                                                               *923 plaintiff waives the right to
       See, e.g., Hernandez v. Ebrom, 289 S.W.3d 316, 319
       (Tex.2009) (“Appeals of some interlocutory orders
                                                                               object or request any relief on appeal.
       become moot because the orders have been rendered                       See TEX.R.APP. P. 33.1(a). We see
       moot by subsequent orders.”).                                           this as no different from any other trial
                                                                               court error that is not preserved—it is
6      See also Travelers Ins. Co. v. Joachim, 315 S.W.3d                      waived.
       860, 863 (Tex.2010) (noting that “[a] judgment is
       void ... when it is apparent that the court rendering       Siebenmorgen v. Hertz Corp., No. 14–97–01012–CV, 1999
       judgment had no jurisdiction of the parties or property,    WL 21299, at *3, 1999 Tex.App. LEXIS 311, at *10–
       no jurisdiction of the subject matter, no jurisdiction to   11 (Tex.App.-Houston [14th Dist.] Jan. 21, 1999, no pet.)
       enter the particular judgment, or no capacity to act”)      (dismissing as moot interlocutory appeal of order denying
       (quoting Browning v. Prostok, 165 S.W.3d 336, 346
                                                                   class certification).
       (Tex.2005)).
Two of our courts of appeals have held that the failure to         A third court of appeals has implicitly concluded that parties
object when a trial court proceeds despite the automatic stay      can waive the right to insist on a section 51.014(b) stay.
waives any error the trial court may have committed by             See Lincoln Property Co. v. Kondos, 110 S.W.3d 712, 715
failing to impose it. See Escalante v. Rowan, 251 S.W.3d 720,      (Tex.App.-Dallas 2003, no pet.). In that case, the court
724–25 (Tex.App.-Houston [14th Dist.] 2008), rev'd on other        observed that the trial court's grant of summary judgment
grounds, 332 S.W.3d 365 (Tex.2011) (per curiam); Henry             while an interlocutory appeal was pending violated the
v. Flintrock Feeders, Ltd., No. 07–04–0224–CV, 2005 WL             statutory stay. Noting that “neither party requested a stay
1320121, at *1, 2005 Tex.App. LEXIS 4310, at *1 (Tex.App.-         from this Court” and “both parties sought to commence the
Amarillo June 1, 2005, no pet.) (mem.op.). In Escalante,           ‘trial’ below by filing and/or arguing motions for summary
the court of appeals held that a party's failure to object to      judgment while this appeal was pending,” the court of appeals
a trial court's ruling on summary judgment motions during          did not conclude that the trial court's summary judgment
the statutory stay “failed to preserve error as to any objection   was void. Id. at 715. Instead, the appellate court held that
that the summary judgment is voidable based on the stay.”          the summary judgment mooted the interlocutory appeal. Id.


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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

at 715–16 (noting that the interlocutory class certification       court signed a final judgment disposing of all parties and all
order merged into the final judgment). The court concluded:        claims and that Roccaforte did not present in his appeal from
“By rendering a final judgment during this appeal, the trial       that judgment the arguments he advances in this interlocutory
court also rendered itself powerless to reconsider its class       appeal.
certification ruling were we to conclude here the ruling was
entered in error.” Id. at 715.
                                                                   B. The trial court's final judgment implicitly modified its
We agree with those decisions that have held that a party          interlocutory order, and we treat this appeal as relating
may waive complaints about a trial court's actions in              to that final judgment.
violation of the stay imposed by section 51.014(b). That            [2] We have repeatedly held that the right of appeal should
stay differs from a situation in which the relevant statute        not be lost due to procedural technicalities. 8 Roccaforte
vests “exclusive jurisdiction” in a particular forum. See, e.g.,   timely perfected appeals from both the interlocutory order
Kalb v. Feuerstein, 308 U.S. 433, 439, 60 S.Ct. 343, 84            and the final judgment, and this is not a situation in which
L.Ed. 370 (1940) (noting that bankruptcy law in effect at the      further proceedings mooted the issues raised in Roccaforte's
time “vested in the bankruptcy courts exclusive jurisdiction”      interlocutory appeal. 9
and “withdr[ew] from all other courts all power under any
circumstances”). For that reason, we have held that actions        8      See, e.g., Guest v. Dixon, 195 S.W.3d 687, 688
taken in violation of a bankruptcy stay are void, not just
                                                                          (Tex.2006) ( “[W]e have repeatedly stressed that
voidable. Cont'l Casing Corp. v. Samedan Oil Corp., 751                   procedural rules should be construed and applied so
S.W.2d 499, 501 (Tex.1988). 7                                             that the right of appeal is not unnecessarily lost to
                                                                          technicalities.”); Crown Life Ins. Co. v. Estate of
7                                                                         Gonzalez, 820 S.W.2d 121, 121–22 (Tex.1991) (per
       But see Sikes v. Global Marine, Inc., 881 F.2d 176, 178
                                                                          curiam)(stating that procedural rules should be “liberally
       (5th Cir.1989) (holding that, under the 1978 Bankruptcy
                                                                          construed so that the decisions of the courts of appeals
       Act, “the better reasoned rule characterizes acts taken
                                                                          turn on substance rather than procedural technicality”).
       in violation of the automatic stay as voidable rather
       than void”); see also Chisholm v. Chisholm, No. 04–06–      9      See, e.g., Isuani v. Manske–Sheffield Radiology Grp.,
       00504–CV, 2007 WL 1481574, at *2–3, 2007 Tex.App.                  P.A., 802 S.W.2d 235, 236 (Tex.1991) (holding that
       LEXIS 3936, at *6–7 (Tex.App.-San Antonio May                      final judgment mooted interlocutory appeal of order
       23, 2007, no pet.) (noting conflict between Sikes and              granting or denying temporary injunction); Providian
       Continental Casing ); In re De La Garza, 159 S.W.3d                Bancorp Servs. v. Hernandez, No. 08–04–00186–CV,
       119, 120–21 (Tex.App.-Corpus Christi 2004, no pet.)                2005 WL 82197, at *1, 2005 Tex.App. LEXIS 288, at
       (same); Oles v. Curl, 65 S.W.3d 129, 131 n. 1 (Tex.App.-           *2 (Tex.App.-El Paso Jan. 13, 2005, no pet.) (mem.op.)
       Amarillo 2001, no pet.)(same); Chunn v. Chunn, 929                 (dismissing as moot interlocutory appeal from order
       S.W.2d 490, 493 (Tex.App.-Houston [1st Dist.] 1996, no             denying motion to compel arbitration, because trial court
       pet.) (same).                                                      entered an order compelling arbitration); Mobil Oil Corp.
 [1] But as we have noted, “a court's action contrary to a                v. First State Bank of Denton, No. 2–02–119–CV, 2004
statute or statutory equivalent means the action is erroneous             WL 1699928, at *1, 2004 Tex.App. LEXIS 6940, at *2
or ‘voidable,’ not that the ordinary appellate or other direct            (Tex.App.-Fort Worth July 29, 2004, no pet.) (dismissing
                                                                          as moot interlocutory appeal from class certification
procedures to correct it may be circumvented.” Mapco,
                                                                          order, because trial court subsequently vacated order,
Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990); cf. Univ.
                                                                          decertified class, and dismissed class action); Lincoln
of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351,
                                                                          Property Co. v. Kondos, 110 S.W.3d 712, 715–16
359 (Tex.2004) (noting that failure to comply with a non-
                                                                          (Tex.App.-Dallas 2003, no pet.) (dismissing as moot
jurisdictional statutory requirement may result in the loss               interlocutory appeal of order granting class certification,
of a claim, but that failure must be timely asserted and                  as trial court subsequently granted summary judgment
compliance can be waived). That is the case here. The trial               motion); see also Hernandez, 289 S.W.3d at 321
court's rendition of final judgment while the stay was in effect          (acknowledging that a party may not, after trial and
was voidable, not void, and Roccaforte's failure to object to             an unfavorable judgment, prevail on a complaint that
the trial court's actions waived any error related to the stay.           the party's summary judgment motion should have been
We must, therefore, confront the fact that the trial *924                 granted, nor could a party complain of a failure to dismiss
                                                                          a health care liability claim based on an inadequate expert


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     5
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

       report, after a full trial and evidence establishing the   Local Government Code section 89.0041 provides:
       elements of that claim).
                                                                    (a) A person filing suit against a county or against a county
[3]   Our procedural rules provide that:
                                                                       official in the official's capacity as a county official shall
            After an order or judgment in a civil                      deliver written notice to:
            case has been appealed, if the trial
                                                                       (1) the county judge; and
            court modifies the order or judgment,
            or if the trial court vacates the order or                 (2) the county or district attorney having jurisdiction to
            judgment and replaces it with another                         defend the county in a civil suit.
            appealable order or judgment, the
            appellate court must treat the appeal as                (b) The written notice must be delivered by certified or
            from the subsequent order or judgment                      registered mail by the 30th business day after suit is filed
            and may treat actions relating to the                      and contain:
            appeal of the first order or judgment as
            relating to the appeal of the subsequent                   (1) the style and cause number of the suit;
            order or judgment. The subsequent
                                                                       (2) the court in which the suit was filed;
            order or judgment and actions relating
            to it may be included in the original                      (3) the date on which the suit was filed; and
            or supplemental record. Any party
            may nonetheless appeal from the                            (4) the name of the person filing suit.
            subsequent order or judgment.
                                                                    (c) If a person does not give notice as required by this
TEX.R.APP. P. 27.3. Here, although the trial court's final             section, the court in which the suit is pending shall
judgment did not expressly modify its interlocutory order,             dismiss the suit on a motion for dismissal made by the
it did so implicitly. Because the claims against the County            county or the county official.
had not been severed, the County remained a party to the
                                                                  TEX. LOC. GOV'T CODEE § 89.0041. In 2005, the
underlying proceeding despite the interlocutory appeal. The
                                                                  Legislature amended the Government Code to provide that
final judgment necessarily replaced the interlocutory order,
                                                                  “[s]tatutory prerequisites to a suit, including the provision of
which merged into the judgment, 10 even though Roccaforte's
                                                                  notice, are jurisdictional requirements in all suits against a
interlocutory appeal remained pending. Under our rules,
                                                                  governmental entity.” TEX. GOV'T CODE § 311.034.
however, we may treat this interlocutory appeal as an *925
appeal from the final judgment. That permits us to reach
                                                                  The County contends section 311.034 makes Roccaforte's
the merits of Roccaforte's claims rather than dismiss the
                                                                  failure to comply with section 89.0041's notice requirements
interlocutory appeal as moot.
                                                                  jurisdictional—an issue we have never decided. Our courts
                                                                  of appeals, however, have concluded that the notice
10     See Webb v. Jorns, 488 S.W.2d 407, 408–09 (Tex.1972)       requirements are not jurisdictional, even in light of section
       (holding that interlocutory judgment merged into final     311.034. See El Paso Cnty. v. Alvarado, 290 S.W.3d
       judgment, which was then appealable).                      895, 898–99 (Tex.App.-El Paso 2009, no pet.) (holding
Although not relying on rule 27.3, the court of appeals took      that section 89.0041 is not jurisdictional because section
a similar approach, treating Roccaforte's appeal as though        311.034 applies only to prerequisites to file suit, not post-
it were from the final judgment. 281 S.W.3d at 231 n. 1.          suit notice requirements); Ballesteros v. Nueces Cnty., 286
Similarly, we treat Roccaforte's appellate complaints about       S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009, pet. denied)
the trial court's grant of the County's jurisdictional plea as    (same); 281 S.W.3d 230, 232–33 (same); Dallas Cnty. v.
though they related to the appeal of the final judgment. We       Coskey, 247 S.W.3d 753, 754–56 (Tex.App.-Dallas 2008, pet.
turn now to the merits of his claim.                              denied) (same); Dallas Cnty. v. Autry, 251 S.W.3d 155, 158
                                                                  (Tex.App.-Dallas 2008, pet. denied) (same); Cnty. of Bexar
                                                                  v. Bruton, 256 S.W.3d 345, 348–49 (Tex.App.-San Antonio
III. The post-suit notice requirements are not                    2008, no pet.) (same).
jurisdictional.



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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

 [4] We presume “that the Legislature did not intend to make              sufficient because the purpose of the statute was to ensure
the [provision] jurisdictional[,] a presumption overcome only             notice, and that purpose was accomplished), Ballesteros
by clear legislative intent to the contrary.” City of DeSoto              v. Nueces Cnty., 286 S.W.3d 566, 570 (Tex.App.-
v. White, 288 S.W.3d 389, 394 (Tex.2009). The statutes'                   Corpus Christi 2009, pet. denied) (same), Dallas Cnty.
                                                                          v. Coskey, 247 S.W.3d 753, 757 (Tex.App.-Dallas 2008,
language reflects no such intent here. Section 311.034 applies
                                                                          pet. denied) (same), and Dallas Cnty. v. Autry, 251
to prerequisites to suit, not notice requirements that can be
                                                                          S.W.3d 155, 158 (Tex.App.-Dallas 2008, pet. denied)
satisfied only after suit is filed. Compare TEX. GOV'T CODE
                                                                          (same), with 281 S.W.3d at 237 (holding that “[r]eading
§ 311.034, with TEX. LOC. GOV'T CODEE § 89.0041
                                                                          a broad actual notice or service exception into the statute
(requiring notice of cause number, court in which case is                 —without any attempt by plaintiff to comply—would, in
filed, and date of filing). Nor does Local Government Code                effect, largely eliminate the specified, additional written
section 89.0041 show such intent: that section states that                notice requirement of the statute”). That conflict gives us
a trial court may *926 dismiss a case for noncompliance                   jurisdiction over this interlocutory appeal. TEX. GOV'T
only after the governmental entity has moved for dismissal.               CODE § 22.225(c), (e).
TEX. LOC. GOV'T CODEE 89.0041(c) (“If a person does                 [5] Section 89.0041 ensures that the appropriate county
not give notice as required by this section, the court in which    officials are made aware of pending suits, allowing the county
the suit is pending shall dismiss the suit on a motion for         to answer and defend the case. See Howlett, 301 S.W.3d at
dismissal made by the county or the county official.”). The        846 (“The apparent purpose of section 89.0041 is to ensure
motion requirement means that a case may proceed against           that the person responsible for answering and defending the
those governmental entities that do not seek dismissal—in          suit—the county or district attorney-has actual notice of the
other words, that a county can waive a party's noncompliance.      suit itself.”); Coskey, 247 S.W.3d at 757 (“Section 89.0041's
This confirms that compliance with the notice requirements         notice of suit requirement against a county serves the purpose
is not jurisdictional. See Loutzenhiser, 140 S.W.3d at 359         of aiding in the management and control of the City's finances
(“The failure of a non-jurisdictional requirement mandated by      and property....”). That purpose was served here—the county
statute may result in the loss of a claim, but that failure must   judge and the district attorney had notice within fifteen days
be timely asserted and compliance can be waived.”). We find        of Roccaforte's filing, and they answered and defended the
no basis upon which to conclude that the Legislature intended      suit. Cf. Loutzenhiser, 140 S.W.3d at 360 (observing that “if
section 89.0041 to be jurisdictional.                              in a particular case a governmental unit were not prejudiced
                                                                   by lack of notice and chose to waive it, we do not see
                                                                   how the statutory purpose would thereby be impaired”). The
IV. Where the appropriate county officials receive
                                                                   statute was not intended to create a procedural trap allowing
timely notice of the suit, the case should not be dismissed
                                                                   a county to obtain dismissal even though the appropriate
if notice was provided by some means other than mail.
                                                                   officials have notice of the suit. See *927 Southern Surety
Roccaforte provided timely notice of every item required
                                                                   Co. v. McGuire, 275 S.W. 845, 847 (Tex.Civ.App.-El Paso
by section 89.0041, and the requisite officials received that
                                                                   1925, writ ref'd) (holding that failure to present written claim
notice. Did the Legislature intend to bar Roccaforte's claim,
                                                                   to commissioners' court as required by statute did not bar
merely because that notice was hand-delivered rather than
                                                                   the claim, because “[t]he purpose of the statute was fully
mailed?
                                                                   accomplished by [oral presentment]”); see also Coskey, 247
                                                                   S.W.3d at 757 (“The manner of delivery specified by the
Roccaforte argues that the County's actual notice of the suit
                                                                   statute assures that county officials will receive notice of a
and his substantial compliance with section 89.0041 should
                                                                   suit after it has been filed to enable it to respond timely and
suffice. A number of courts of appeals (though not the court of
                                                                   prepare a defense.”). Because those officers had the requisite
appeals in this case) agree with him. 11 The County disagrees,     notice, we conclude that the trial court erred in dismissing
arguing that the statute requires strict compliance with its       Roccaforte's claims.
terms, and dismissal is mandated if those terms are not
satisfied.
                                                                   V. Conclusion
11     Compare Howlett v. Tarrant Cnty., 301 S.W.3d 840,           Roccaforte's claims against the County should not have been
       847 (Tex.App.-Fort Worth 2009, pet. denied) (holding        dismissed for lack of notice. 12 We reverse the court of
       that substantial compliance with section 89.0041 was        appeals' judgment as to those claims and remand the case



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Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

to the trial court for further proceedings. TEX.R.APP. P.           since “the surest guide to legislative intent” is the language
60.2(d).                                                            lawmakers chose. 6 In other words, “Where text is clear, it
                                                                    is determinative of that intent.” 7 The Court today agrees
12        Because this issue is dispositive, we do not reach        that nothing in Section 89.0041 relieves *928 Roccaforte
          Roccaforte's argument that 42 U.S.C. § 1983 preempts      from compliance. So, to escape the statute's emphatic “shall
          section 89.0041's notice requirements.
                                                                    dismiss the suit” mandate, 8 the Court pivots on “actual
                                                                    notice” and “substantial compliance” and holds that the
Justice WILLETT delivered a concurring opinion.                     statute's purpose was fulfilled via hand-delivery.

                                                                    4      341 S.W.3d 919, 926 (explaining that compliance with
Justice WILLETT, concurring in part.
                                                                           the notice requirements of Section 89.0041 of the
I join Parts I–III of the Court's opinion. As for Part IV, I join
                                                                           Local Government Code “is not jurisdictional”) (citation
the result but not the reasoning. There is a better approach, one
                                                                           omitted).
more allegiant to the Legislature's words. Roccaforte's claim
should proceed, but the reason is rooted not in his substantial     5      341 S.W.3d at 926.
compliance but rather the County's substantial dalliance.           6      Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930
                                                                           (Tex.2010) (citation and quotation marks omitted).
***
                                                                    7      Id.
Aristotle would have enjoyed this case, which perfectly
                                                                    8      See TEX. LOC. GOV'T CODEE § 89.0041(c).
illustrates the challenge he recognized of reconciling the
“absoluteness” of the written law with equity in the particular     Honoring a statute's plain words is indispensable, even
      1                                                             if enforcing those words as written works an unpalatable
case. Believing that “the equitable is superior” and that rigid
                                                                    result. To be sure, courts deviate from otherwise-clear
laws must bend, 2 Aristotle urged “a correction of law where
                                                                    textual commands to avert “absurd” results or to vindicate
it is defective owing to its universality.” 3 From Athens,
                                                                    constitutional principles. 9 But as a general matter, if the
Greece to Athens, Texas (and beyond), judges still debate the
                                                                    legal deck is stacked via technical statutory requirements, the
bounds of interpretive discretion—whether it is appropriate
to temper the “absoluteness” of statutory mandates and              Legislature should reshuffle the equities, not us. 10
ameliorate their seeming harshness. Millennia may have
passed since Aristotle's Lyceum, but this great philosophical       9      The absurdity doctrine, rightly understood, is a safety
and jurisprudential debate endures.                                        valve reserved for truly exceptional cases, not just those
                                                                           where the mandated statutory outcome is thought unwise
1                                                                          or inequitable. See generally John F. Manning, The
          Aristotle, Nicomachean Ethics bk. V, ch. 10.
                                                                           Absurdity Doctrine, 116 HARV. L.REV.. 2387 (2003).
2         Id.                                                              As Chief Justice Marshall famously put it, a court's
                                                                           allegiance to the text ceases when applying the text
3         Id.                                                              “would be so monstrous that all mankind would, without
                                                                           hesitation, unite in rejecting the application.” Sturges v.
                                                                           Crowninshield, 17 U.S. (4 Wheat.) 122, 203, 4 L.Ed. 529
                                  I                                        (1819).

As the Court persuasively explains in Part III, the post-suit       10     The Legislature can, of course, if it wishes, statutorily
notice requirements in Section 89.0041 are not jurisdictional,             overturn today's holding that Section 89.0041 is
                                                                           nonjurisdictional and subject to an actual-notice
meaning a County can waive a plaintiff's noncompliance. 4
                                                                           exception.
Here, the County objected to Roccaforte's noncompliance,
prompting the Court to ask: “Did the Legislature intend to          As for whether Section 89.0041's use of phrases like “shall
bar Roccaforte's claim, merely because that notice was hand-        deliver,” 11 “must be delivered,” 12 “as required,” 13 and
delivered rather than mailed?” 5 If phrased that way, our           “shall dismiss” 14 mandates strict compliance, I would
recent and unanimous precedent answers the question “yes,”          take the statute at face value. Beyond that, those desiring


                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    8
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

additional reassurance that lawmakers intended what they                   the purpose of the statute was to ensure notice, and that
enacted can find it in a properly contextual reading of other              purpose was accomplished); Ballesteros v. Nueces Cnty.,
notice-related statutes.                                                   286 S.W.3d 566, 570 (Tex.App.-Corpus Christi 2009,
                                                                           pet. denied) (same); Dallas Cnty. v. Coskey, 247 S.W.3d
                                                                           753, 757 (Tex.App.-Dallas 2008, pet. denied) (same);
11      TEX. LOC. GOV'T CODEE § 89.0041(a).                                Dallas Cnty. v. Autry, 251 S.W.3d 155, 158 (Tex.App.-
12                                                                         Dallas 2008, pet. denied) (same)). Two of the three courts
        Id. § 89.0041(b).
                                                                           of appeals even cite as support two of our decisions
13      Id. § 89.0041(c).                                                  involving notice in other contexts. Coskey, 247 S.W.3d
                                                                           at 757 (“Both Artco–Bell Corp. and Cox Enterprises,
14      Id.                                                                Inc.. support a standard of substantial compliance with
First, the Legislature, while omitting an actual-notice                    notice requirements under certain circumstances, and we
exception from Section 89.0041, expressly included one                     conclude that standard applies in these circumstances.”)
in the Tort Claims Act, stating the Act's pre-suit notice                  (citations omitted); Ballesteros, 286 S.W.3d at 571–72.
                                                                           A third court of appeals opinion in turn relies upon
requirements “do not apply if the governmental unit has
                                                                           Coskey. See Autry, 251 S.W.3d at 158.
actual notice....” 15 The Legislature understands how to                      Closer analysis reveals Coskey and Ballesteros offer
let actual notice excuse technical noncompliance; it easily                   feeble support, as they misinterpret this Court's
could have said actual notice suffices, thus obviating the                    holdings in Cox Enters., Inc. v. Bd. of Trs. of Austin
need for service via certified or registered mail. Instead,                   Indep. Sch. Dist., 706 S.W.2d 956 (Tex.1986), and
it opted against actual notice, presumably on purpose. For                    Artco–Bell Corp. v. City of Temple, 616 S.W.2d 190
better or worse, lawmakers enacted strict compliance, not                     (Tex.1981). The issue in Cox involved how much
substantial compliance. Our interpretive focus, both textual                  particularity was required in notice. 706 S.W.2d at
and contextual, must be on the law as written, and we should                  960 (noting that “less than full disclosure is not
                                                                              substantial compliance” and that “the Open Meetings
refuse to engraft what the Legislature has refused to enact.
                                                                              Act requires a full disclosure of the subject matter
                                                                              of the meetings”). Artco–Bell is likewise inapposite.
15      TEX. CIV. PRAC. & REM.CODE § 101.101(c).                              In Artco–Bell, the Court simply invalidated the
Second, reading “actual notice” into Section 89.0041's post-                  notice requirement in a city's charter and held the
suit notice requirement robs it of any real meaning and                       plaintiff had provided sufficient notice. 616 S.W.2d
                                                                              at 193–94 (“[W]e hold that the requirement of
also makes Section 89.004's pre-suit notice requirement
                                                                              verification represents an unreasonable limitation on
redundant. Section 89.004 forbids someone from suing a
                                                                              the City's liability and is invalid as it is contrary to
county or county official “unless the person has presented
                                                                              the limitation of authority placed upon home rule
the claim to the commissioners court and the commissioners                    cities....”) (footnote omitted).
court neglects or refuses to pay all or part of the claim....” 16             Cox was about the specificity of notice; Artco–Bell
This presentment requirement assures actual notice of a claim                 resulted in the invalidation of notice. In neither case
before it is filed and was already on the books when Section                  did the Court craft an exception for notice. The lower
89.0041 was added in 2003. Logically then, Section 89.0041                    courts' treatment of these cases was thus strained,
must require something in addition to the preexisting notice                  and should not be taken as a correct reading of our
                                                                              jurisprudence on statutory notice requirements.
and presentment requirements. 17
                                                                    *929 The requisite officials here received notice, but they
16      TEX. LOC. GOV'T CODEE § 89.004(a).                          did not receive “requisite notice,” as the Court states. 18
                                                                    The Court may deem it adequate, but it is irrefutably
17      Another point: As the Court notes, some courts              not requisite. As the Court reads Section 89.0041, it is
        of appeals have concluded that a substantial-               not only nonjurisdictional (I agree on this point), but also
        compliance exception lies hidden within Section             nonmandatory. I acknowledge the statute's no-exceptions
        89.0041, notwithstanding the statute's emphatic “shall
                                                                    mandate works a harsh result, 19 but to the degree this seems
        dismiss” mandate. 341 S.W.3d at 928 (citing Howlett
        v. Tarrant Cnty., 301 S.W.3d 840, 847 (Tex.App.-            a trap for the unwary, it is a trap the Legislature left well
        Fort Worth 2009, pet. denied) (holding that substantial     marked.
        compliance with Section 89.0041 was sufficient because




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      9
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

18     341 S.W.3d at 927.                                           point, which on these facts is not whether the County
                                                                    sought dismissal, but when. A governmental body can
19     Had the County “timely asserted” Roccaforte's                raise a jurisdictional bar like immunity from suit whenever
       noncompliance, dismissal would have been mandatory           it pleases because “the trial court does not have—and
       under the statute's rigid, no-discretion mandate, thus
                                                                    never had—power to decide the case,” 21 thus making
       raising the question of whether Section 89.0041's notice
       regime is preempted by 42 U.S.C. § 1983. See Univ.           judgments forever vulnerable to delayed attack. Not so with
       of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351,       nonjurisdictional requirements like this, which are waived
       359 (Tex.2004) (“The failure of a non-jurisdictional         if not timely raised. Under our precedent, dismissal delayed
       requirement mandated by statute may result in the loss       is sometimes dismissal denied: “The failure of a non-
       of a claim, but that failure must be timely asserted         jurisdictional requirement mandated by statute may result in
       and compliance can be waived.”). That question, while        the loss of a claim, but that failure must be timely asserted and
       interesting legally, is not before us.
                                                                    compliance can be waived.” 22 Moreover, “if a governmental
                                                                    unit is to avoid litigation to which it should not be subjected
                                                                    because of lack of notice, it should raise the issue as soon as
                                II
                                                                    possible.” 23 On these facts, there was no timely assertion,
Having said all that, I agree with the Court that Roccaforte        much less one made “as soon as possible.” 24
ultimately wins his notice dispute, but on different grounds.
Instead of asking whether the Legislature meant to bar              21      In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 306
Roccaforte's claim,
                                                                            (Tex.2010) (citation omitted).

I would rephrase the question in a manner less assaultive           22      Loutzenhiser, 140 S.W.3d at 359 (emphasis added).
to the statutory text: Did the County effectively waive
                                                                    23      Id. at 360. “Moreover, if in a particular case a
Roccaforte's noncompliance by not timely asserting it? I
                                                                            governmental unit were not prejudiced by lack of notice
believe so. 20                                                              and chose to waive it, we do not see how the statutory
                                                                            purpose would thereby be impaired.” Id.
20     Waiver may actually be the wrong term; it may be             24      Reading Section 89.0041 in tandem with our
       more accurate to call this forfeiture. As the United
                                                                            settled precedent distinguishing mandatory requirements
       States Supreme Court explains: “Waiver is different from
                                                                            (waivable) from jurisdictional ones (nonwaivable) is
       forfeiture. Whereas forfeiture is the failure to make the
                                                                            consistent with a textualist approach that integrates
       timely assertion of a right, waiver is the intentional
                                                                            established interpretive norms. For example, even the
       relinquishment of a known right.” United States v.
                                                                            most ardent textualist would read a statute of limitations
       Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d
                                                                            in light of the common-law rules of equitable tolling.
       508 (1993) (emphasis added) (citations and quotation
                                                                            See Young v. United States, 535 U.S. 43, 49, 122 S.Ct.
       marks omitted). In any event, under our definition:
                                                                            1036, 152 L.Ed.2d 79 (2002) (“It is hornbook law that
            “[W]aiver” is the intentional relinquishment of
                                                                            limitations periods are customarily subject to equitable
            a right actually or constructively known, or
                                                                            tolling, unless tolling would be inconsistent with the
            intentional conduct inconsistent with claiming that
                                                                            text of the relevant statute.”) (citations and quotation
            right. The elements of waiver include (1) an existing
                                                                            marks omitted); see also United States v. Beggerly, 524
            right, benefit, or advantage held by a party; (2)
                                                                            U.S. 38, 48, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998).
            the party's actual or constructive knowledge of
                                                                            As Justice Scalia noted in Young, a limitations period
            its existence; and (3) the party's actual intent
                                                                            is subject to the principles of equitable tolling, so long
            to relinquish the right or intentional conduct
                                                                            as the statutory text does not preclude such tolling.
            inconsistent with the right.
                                                                            535 U.S. at 47, 122 S.Ct. 1036. Same here, where
          Perry Homes v. Cull, 258 S.W.3d 580, 602–03
                                                                            the Legislature drafts notice requirements in light of
          (Tex.2008) (citations omitted).
                                                                            our decisions differentiating between mandatory and
 *930 True, the County, after waiting for limitations                       jurisdictional provisions and the consequences that flow
to expire, filed a motion for dismissal complaining that                    from each characterization.
Roccaforte provided notice via personal service rather than
                                                                    We have held that waiver is decided on a case-by-case basis,
registered or certified mail. I believe that obscures the key
                                                                    meaning courts look to the totality of the circumstances. 25


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                10
Roccaforte v. Jefferson County, 341 S.W.3d 919 (2011)
32 IER Cases 346, 54 Tex. Sup. Ct. J. 900

                                                                          26      It is true that defendants may assert defenses like
Here, *931 the County sought dismissal based on imperfect
notice more than two years after suit was filed; more than                        limitations in the trial court even following extensive
two years after the County filed its answer; more than two                        discovery and other pre-trial activity. See TEX.R. CIV.
years after the County filed its special exceptions; after the                    P. 94 (affirmative defenses including limitations must
                                                                                  be pleaded); TEX.R. CIV. P. 63 (pleadings may be
County presented three County officials for deposition and
                                                                                  amended without leave of court until seven days before
defended those depositions; after the County sent written
                                                                                  trial). Today's case, though, involves a statutory notice
discovery requests; after the County deposed Roccaforte; and
                                                                                  requirement that mandates action within a prescribed
after the County filed a motion for continuance. If two-plus                      time, something Loutzenhiser held should be raised “as
years qualifies as “timely asserted” or “as soon as possible”—                    soon as possible” since the statutory purpose is to avoid
at least in the context of a statutory notice requirement                         litigation altogether. 140 S.W.3d at 360.
commanding action—then these phrases have been drained                                Section 89.0041 may not be a prerequisite to bringing
of all meaning. 26 Indeed, the only thing the County “timely                          suit, but it is a postrequisite to maintaining suit. In
asserted” was limitations. I would disallow the County's                              my view, Section 89.0041, unlike the Tort Claims
                                                                                      Act, does not allow actual notice to forgive defective
belated insistence on dismissal given its decision to defend
                                                                                      notice, but that does not mean actual notice may
the case for so long, asserting noncompliance only after
                                                                                      not affect the waiver inquiry of whether a defendant
seizing tactical advantage via limitations, and thus materially
                                                                                      “timely asserted” noncompliance. For reasons stated
prejudicing Roccaforte. There is no countervailing prejudice                          above, I believe a county that quickly asserts statutory
in allowing Roccaforte's suit to proceed against the County,                          noncompliance, even if it has actual notice, is entitled
which can hardly argue at this late stage that imperfect                              to dismissal under Section 89.0041. But a county
notice has harmed its legal position (unlike its fiscal position,                     with actual notice that untimely asserts noncompliance
having underwritten years of legal and judicial expenses). On                         (here only after limitations had run two-plus years
these facts, two-plus years of litigation activity to run out                         later) has waived its objection and is not entitled
the limitations clock betrays the County's too-little, too-late                       to dismissal. See City of DeSoto v. White, 288
request for dismissal and constitutes waiver.                                         S.W.3d 389, 400–01 (Tex.2009) (noting that a party
                                                                                      that declines to act in light of “full knowledge” of
25                                                                                    a defect in a nonjurisdictional notice requirement
        See Perry Homes, 258 S.W.3d at 589–91 (explaining
                                                                                      generally waives any complaint). Any other result
        that a party waives an arbitration clause by engaging
                                                                                      would incentivize counties to sit on their rights rather
        in substantial litigation to the other party's detriment or
                                                                                      than assert them immediately. Here, the County would
        prejudice).
                                                                                      be rewarded for wasting over two-years' worth of
           In Jernigan v. Langley, the Court considered whether
                                                                                      judicial resources and taxpayer dollars in defending a
           a defendant physician waived his statutory right
                                                                                      suit it could have easily dismissed from the outset.
           to contest the adequacy of the plaintiff's expert
                                                                                  ***
           reports by waiting too long. 111 S.W.3d 153, 153
           (Tex.2003). The Court held that delay does not always          The Court's understandable desire to work an eminently fair
           result in waiver, but it does when the defendant's             result has led it to revise the statute as desired rather than read
           silence or inaction for such a long period shows               it as enacted. I favor a different approach to the same outcome.
           an intent to yield a known right. Id. at 157. I                Roccaforte should win not because the Court waived the
           would hold that the County's actions are inconsistent          Legislature's words but because the County did.
           with the intent to assert its statutory right to up-
           front dismissal based on defective notice. Moreover,
           Jernigan predates our 2004 decision in Loutzenhiser,           All Citations
           which speaks specifically to statutorily mandated
           notice requirements involving governmental units and           341 S.W.3d 919, 32 IER Cases 346, 54 Tex. Sup. Ct. J. 900
           says notice-based objections should be asserted “as
           soon as possible.” 140 S.W.3d at 360.


End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        11
Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934 (1983)


                                                                            is mandatory. Vernon's Ann.Texas Civ.St. art.
                                                                            4590i, § 4.01.
     KeyCite Yellow Flag - Negative Treatment
Declined to Follow by   Neal v. Oakwood Hosp. Corp.,   Mich.App.,           46 Cases that cite this headnote
 December 12, 1997

                      652 S.W.2d 934                                 [2]    Health
                  Supreme Court of Texas.                                       Notice
                                                                              198H Health
          David Joe SCHEPPS et al., Petitioners,
                                                                              198HV Malpractice, Negligence, or Breach of
                         v.                                                   Duty
              PRESBYTERIAN HOSPITAL                                           198HV(G) Actions and Proceedings
                OF DALLAS, Respondent.                                        198Hk807 Notice
                                                                                   (Formerly 299k18.20 Physicians and
               No. C–1591. | June 22, 1983.                                   Surgeons)
           |    Rehearing Denied July 20, 1983.                             Barring further prosecution of medical
                                                                            malpractice action is not appropriate remedy for
Medical malpractice suit was brought against hospital and                   plaintiff's failure to give notice under provision
physician alleging malpractice as to plaintiffs' son. The                   of Medical Liability and Insurance Improvement
District Court No. 192, Dallas County, Leftwith, J., granted                Act requiring giving 60 days' notice prior to
defendants' motion for summary judgment and ordered that                    filing suit; rather, upon motion of defendant,
plaintiffs take nothing. The Court of Appeals, 638 S.W.2d                   cause should be abated for 60 days. Vernon's
156, reversed, and instructed dismissal of plaintiffs' cause.               Ann.Texas Civ.St. arts. 4590i, 4590i, § 4.01.
The Supreme Court, Kilgarlin, J., held that: (1) notice
provision contained in Medical Liability and Insurance                      61 Cases that cite this headnote
Improvement Act is mandatory, but (2) appropriate remedy
when plaintiff fails to give notice is not a bar of further
prosecution of suit, but rather, upon motion of defendant,
cause should be abated for 60 days.                                 Attorneys and Law Firms

Remanded.                                                            *935 Carp & Eddleman, William R. Eddleman, Dallas, for
                                                                    petitioners.
Pope, C.J., dissented and filed opinion.
                                                                    Jackson, Walker, Winstead, Cantwell & Miller, C. Steven
                                                                    Matlock, Thompson & Knight, Richard E. Gray and Gerald
                                                                    H. Grissom, Dallas, for respondent.
 West Headnotes (2)
                                                                    Opinion

 [1]     Health                                                     KILGARLIN, Justice.
             Notice
                                                                    Two issues are presented by this case. Is the notice
          198H Health
                                                                    provision contained in the Medical Liability and Insurance
          198HV Malpractice, Negligence, or Breach of
          Duty                                                      Improvement Act, 1 which requires giving sixty days notice
          198HV(G) Actions and Proceedings                          prior to filing suit, mandatory? If so, what is the appropriate
          198Hk807 Notice                                           remedy when a plaintiff fails to give notice?
               (Formerly 299k18.20 Physicians and
          Surgeons)                                                 1      Tex.Rev.Civ.Stat.Ann. art. 4590i § 4.01.
         Notice provision contained in Medical Liability
         and Insurance Improvement Act, which requires              Mr. and Mrs. Schepps filed this suit against Presbyterian
         giving 60 days' notice prior to filing suit,               Hospital of Dallas and Patterson S. Reaves, M.D., alleging
                                                                    their malpractice as to Robert Allen Schepps, the Schepps'



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934 (1983)



sixteen-year old son. 2 Presbyterian Hospital and Dr. Reaves
                                                                       (d) All parties shall be entitled to obtain complete and
each moved for summary judgment, alleging that the Schepps
                                                                       unaltered copies of the claimant's medical records from
failed to give at least sixty days notice prior to filing the
                                                                       any other party within 10 days from the date of receipt
suit. The trial court granted both motions and ordered that
                                                                       of a written request for such records; provided, however,
the Schepps take nothing. The court of appeals agreed that
                                                                       that the receipt of a medical authorization executed by the
the notice provision was mandatory, but reversed on the
                                                                       claimant herein shall be considered *936 compliance by
basis that it was improper to render a take nothing judgment
                                                                       the claimant with this section.
and instructed the trial court to dismiss the Schepps' cause.
638 S.W.2d 156. We affirm the judgment of the court of
                                                                     The Schepps argue that section 4.01 is merely directory
appeals insofar as it reverses the judgment of the district court.
                                                                     rather than mandatory and that failure to comply with the
However, we reverse the judgment of the court of appeals
                                                                     notice provision should not result in the loss of their cause
with respect to the disposition ordered on remand.
                                                                     of action. They acknowledge that the word “shall” is used in
                                                                     the pertinent provision, but contend that the word should be
2        Likewise sued was James W. Cotter, M.D., who was non-       treated as directory in application. See Thomas v. Groebl, 147
         suited by the Schepps.                                      Tex. 70, 212 S.W.2d 625, 630 (1948). Presbyterian Hospital
On July 16, 1978, Robert Allen Schepps was involved in a             and Dr. Reaves argue that the word “shall” can only be
motor vehicle accident in Dallas, Texas. He was taken by             construed in this case to be mandatory and, accordingly,
ambulance to Presbyterian Hospital where he was allegedly            failure to give notice is a bar to prosecution of this suit.
examined by Dr. Reaves. Some three hours later he was
transferred to Parkland Memorial Hospital in Dallas. He              This Court stated the general guidelines for determining
died three days later. The Schepps filed their lawsuit on            whether a statutory provision is mandatory or directory in
May 12, 1980. After the two year statute of limitations ran,         Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943
Presbyterian Hospital and Dr. Reaves filed their motions for         (1956):
summary judgment. As stated, the district court granted the
motions for summary judgment and ruled that the Schepps                          There is no absolute test by which
take nothing.                                                                    it may be determined whether a
                                                                                 statutory provision is mandatory or
The sixty-day notice provision at issue in this case is                          directory. The fundamental rule is
contained in article 4590i, section 4.01, which reads as                         to ascertain and give effect to the
follows:                                                                         legislative intent. Although the word
                                                                                 “shall” is generally construed to be
    (a) Any person or his authorized agent asserting a health                    mandatory, it may be and frequently
    care liability claim shall give written notice of such                       is held to be merely directory. In
    claim by certified mail, return receipt requested, to each                   determining whether the Legislature
    physician or health care provider against whom such claim                    intended the particular provision to
    is being made at least 60 days before the filing of a suit                   be mandatory or merely directory,
    in any court of this state based upon a health care liability                consideration should be given to the
    claim.                                                                       entire act, its nature and object, and the
                                                                                 consequences that would follow from
    (b) In such pleadings as are subsequently filed in any court,                each construction. Provisions which
    each party shall state that it has fully complied with the                   are not of the essence of the thing
    provision of this section and shall provide such evidence                    to be done, but which are included
    thereof as the judge of the court may require to determine                   for the purpose of promoting the
    if the provisions of this Act have been met.                                 proper, orderly and prompt conduct of
                                                                                 business, are not generally regarded
    (c) Notice given as provided in this Act shall toll the
                                                                                 as mandatory. If the statute directs,
    applicable statute of limitations to and including a period of
                                                                                 authorizes or commands an act to be
    75 days following the giving of the notice, and this tolling
                                                                                 done within a certain time, the absence
    shall apply to all parties and potential parties.
                                                                                 of words restraining the doing thereof


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934 (1983)


            afterwards or stating the consequences               meritorious. Therefore, the Commission recommended that
            of failure to act within the time                    a process be made available that would facilitate the early
            specified, may be considered as a                    identification of unmeritorious suits.
            circumstance tending to support a
            directory construction.                              4      Section 1.02(a)(13) of article 4590i, Texas Revised
                                                                        Civil Statutes Annotated (Medical Liability Insurance
Id. at 945. 3 Keeping these guidelines in mind, we turn                 Improvement Act), explicitly states that the Legislature
to the legislative history behind article 4590i, section 4.01.          adopted the findings made by the Keeton Commission.
We additionally note that section 4.01 is a notice statute in
                                                                 The Commission proffered two suggestions in this regard: (1)
derogation of the common law and, therefore, is to be strictly
                                                                 a period of time prior to the filing of suit should be set aside
construed. City of Waco v. Roberts, 121 Tex. 217, 48 S.W.2d
                                                                 for discussion between the parties, in order that an amicable
577 (1932).
                                                                 agreement might be reached without the necessity for formal
                                                                 action; and (2) in the event a settlement was not reached, a
3      In addition to Chisholm v. Bewley Mills, 155 Tex. 400,    mandatory screening panel should be established to review
       287 S.W.2d 943 (1956), and Thomas v. Groebl, 147 Tex.     claims prior to the filing of suit. The report indicates that
       70, 212 S.W.2d 625 (1948), other holdings of this Court   the Keeton Commission sought to eliminate frivolous and
       employing similar tests with similar results are Lewis
                                                                 unjustified claims from being filed as lawsuits so malpractice
       v. Jacksonville Building and Loan Assoc., 540 S.W.2d
                                                                 carriers would not be called upon to expend large sums of
       307 (Tex.1976); Kilday v. Germany, 139 Tex. 380, 163
                                                                 money in defense of such suits, which of necessity would
       S.W.2d 184 (1942); Markowsky v. Newman, 134 Tex.
                                                                 affect premiums paid by health care providers. It is significant
       440, 136 S.W.2d 808 (1940); Federal Crude Oil Co. v.
       Yount-Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56 (1932),      to note that the sixty-day notice provision and the screening
       and Hess and Skinner Engineering Co. v. Turney, 109       panel provision would constitute a combined program to
       Tex. 208, 203 S.W. 593 (1918).                            weed out the unmeritorious claims.

In 1975, physicians and other health care providers asked
                                                                 Numerous bills were subsequently introduced in both houses
the Legislature to address the problem of the spiraling cost
                                                                 to implement the Commission recommendations. The final
of medical malpractice insurance. As a remedial measure
                                                                 House version, H.B. 1048, provided for both the sixty-
the Legislature enacted the Professional Liability Insurance
                                                                 day notice provision and the health care screening panel,
for Physicians, Podiatrists and Hospitals Act, which became
                                                                 as recommended by the Commission. The bill additionally
codified as article 5.82 of the Texas Insurance Code. At
                                                                 contained “intent” language in the notice section which
the time of the adoption of article 5.82, the Legislature
                                                                 stated:
specifically provided that the measure would be temporary
in nature by allowing it to expire by its own terms on                        It is the intention of this section
December 31, 1977. However, with a goal toward creating                       that all parties attempt to dispose of
long-term legislation to provide relief for physicians and                    a health care liability claim without
other medical care providers, the Legislature created the                     the necessity of review by health
Texas Medical Professional Liability Study Commission and                     care screening panel or the filing and
directed it to make a report to the 65th session of the                       pursuit of a lawsuit.
Texas Legislature, scheduled to convene in January, 1977.
That Commission became commonly known as the Keeton
                                                                 The final Senate version of H.B. 1048 completely removed
Commission, adopting the name of its Chairman, former
                                                                 the portion of the bill concerning the creation of screening
University of Texas Law School Dean, W. Page Keeton.
                                                                 panels and struck the “intent” language from the notice
                                                                 section. The House refused to concur in the Senate
In its findings 4 , the Keeton Commission stated that a large    amendments and the bill was sent to conference committee.
percentage of the malpractice claims filed proved to be          The conference committee accepted the Senate amendments
unmeritorious, *937 and that the handling and processing of      with minor changes, which did not affect the elimination of
those claims involved cost. The Commission also recognized,      screening panels or the intent language in the notice section.
however, that a claim was not irresponsible and malicious        The conference committee report was enacted into law.
simply because it was not subsequently established to be



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934 (1983)


Certain conclusions can be drawn from this legislative               the notice provision, and (2) providing such evidence as the
history. First, the original notice provision was an attempt to      trial court may require as to proof of compliance. Had it not
provide for resolution of malpractice claims without the filing      been the intent of the Legislature that the notice provision
of suit. Senator Kent Hance of Lubbock County, in explaining         was mandatory, there would have been no need for the
his amendment that deleted the intent language from the              incorporation of paragraph (b) into the section. Accordingly,
notice section, noted that the bill “merely states that you          we conclude that the courts below were correct in construing
would have to give notice to anyone before you file a lawsuit        the language of section 4.01 as being mandatory, and notice
against them.” Transcription, Senate proceedings, H.B. 1048,         must be given at least sixty days before suit is filed.
April 18, 1977. Second, the feature of the legislative proposal
that might have best accomplished a resolution of malpractice        In addition to the court of appeals in this cause, three other
claims was eliminated from the bill—the screening panel              courts have written in an effort to interpret section 4.01 of
provision. We must conclude, therefore, that the Legislature         article 4590i. Wilborn v. University Hospital, 642 S.W.2d
in its final enactment upgraded the importance of the notice         50 (Tex.App.—Amarillo 1982, no writ) followed the court
provision, for it remained as the only vehicle to encourage          of appeals holding in this cause and held that compliance
pre-suit negotiations.                                               with the notice requirement was mandatory and that the cause
                                                                     should be dismissed. Because of our decision in this case,
Tending to support a directory interpretation is that medical        we disapprove of the disposition made in Wilborn. Burdett
malpractice laws enacted by other states at approximately the        v. Methodist Hospital, 484 F.Supp. 1338 (N.D.Tex.1980)
same time as the Texas act contain more explicit mandatory           reached a contrary conclusion, stating: “[I]f the Legislature
language. See, e.g., Me.Rev.Stat.Ann. tit. 24 § 2903 (“No            had wanted to subject a suit to dismissal for failure to give
action ... shall be commenced ”); N.H.Rev.Stat.Ann. § 507–           the notice, the Legislature could, and likely would, have so
C:5 (“No action ... shall be commenced ”); Utah Code Ann.            said.” Id. at 1341.
§ 78–14–8 (“No malpractice action ... may be initiated ”);
Va.Code § 8.01–581.2 (“No action may be brought for                   [2] Having decided that “shall” is mandatory, there remains
malpractice ... unless the claimant notifies”). 5 Additionally,      our disposition of this case. The court of appeals would bar
we note that no bill, including the one finally adopted,             further prosecution because notice was not properly given.
ever contained any provision as to the consequences of               We disagree. We would observe that article 4590i, sections
failure to give sixty days notice prior to filing suit. This is      1.02(b) and 1.02(b)(3) state: “[I]t is the purpose of the Act
 *938 significant because, as noted earlier, “the absence of         to improve and modify the system by which health care
words restraining the doing thereof afterwards or stating the        liability claims are determined ... [and to] do so in a manner
consequences of failure to act within the time specified, may        that will not unduly restrict a claimant's right anymore than
be considered as a circumstance tending to support a directory       necessary to deal with the crisis.” We conclude that to bar
construction.” Chisholm v. Bewley Mills, 155 Tex. at 403,            prosecution for failure to give notice would constitute such an
287 S.W.2d at 945.                                                   undue restriction of claimant's right. The intent of the Keeton
                                                                     Commission and the Legislature was to encourage pre-suit
5                                                                    negotiations so as to avoid excessive cost of litigation. This
       The Keeton Commission report indicates consideration
                                                                     likewise can be accomplished by requiring an abatement of
       of Utah and Virginia materials. It may be presumed that
                                                                     the cause of action for a duration of sixty days in the event
       Senator Hance, who was a Commission member, was
       aware of the language in the notice sections of those         that plaintiff fails to give the required notice, and at the same
       states' statutes. His final amendment of the notice section   time protect plaintiff's right to maintain that lawsuit. For these
       of our statute made no effort to incorporate such clearly     reasons we find no inconsistency in holding the provision
       mandatory language.                                           mandatory, yet only subjecting the cause to abatement.
 [1] Had section 4.01 contained only paragraph (a), we
                                                                     Accordingly, we hold that in any medical malpractice action
would be justified in concluding that the notice provision was
                                                                     subject to article 4590i, where a plaintiff has failed to give
merely directory. However, that section cannot be read in a
                                                                     notice sixty days prior to the filing of suit, upon motion of the
vacuum. Paragraph (b) clearly evidences an intent upon the
                                                                     defendant, the cause should be abated for sixty days. This case
part of the Legislature that the giving of notice is mandatory.
                                                                     is remanded to the trial court for disposition not inconsistent
That paragraph contains two requirements: (1) an affirmative
                                                                     with this opinion.
statement in the pleadings that there has been compliance with


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934 (1983)


                                                                          The Texas Legislature was at first presented with a two-step
                                                                          mechanism as a means to eliminate spurious claims. The
                                                                          first was the notice provision contained in section 4.01. The
POPE, C.J., dissents.                                                     second was the proposal for a mandatory screening panel.
                                                                          That panel had to act before a suit was filed. The legislature
POPE, Chief Justice, dissenting.                                          determined that the pre-suit notice would be sufficient to
I respectfully dissent. I dissent because the majority, while             accomplish the purpose of weeding out the false, sham, and
holding that the statutory requirement that a medical                     meretricious claims. Both provisions, however, contemplated
malpractice claimant must give notice “at least 60 days before            notice before suit was filed.
the filing of suit,” also holds that it is all right if he does not
give notice “at least 60 days before the filing of suit.” The             I agree that the legislature in eliminating the second pre-suit
statute means nothing, says the majority.                                 step determined that only one step was necessary to achieve
                                                                          its purpose. It determined that the sixty-day pre-suit notice
I agree with the majority holding that the Medical Liability              would afford an opportunity for consultation, mediation, and
and Insurance Improvement Act expressly requires sixty                    adjustment in many instances. I agree that the legislature
 *939 days notice prior to filing suit. Tex.Rev.Civ.Stat.Ann.             in eliminating the two-step pre-suit requirement, determined
art. 4590i, § 4.01. I agree that the legislative history                  that the sixty-day notice provision was enough and would
demonstrates an intent to reject those claims that are                    accomplish its objective.
groundless and unmeritorious—those that are filed as
nuisance suits that are costly and embarrassing to the medical            The legislature intended the avoidance of nuisance suits. They
provider. I agree that the Keeton Commission found that                   clog dockets, stand in the way of meritorious claims, and
malpractice claims, and especially the nuisance claims,                   constitute that vast body of lawsuits that are on the docket but
magnify the costs for all users of medical services.                      are not being pressed for trial. See J. Lieberman, The Litigious
                                                                          Society 3–5, 66–68 (1981).
I agree that it was the surplus of nuisance and embarrassment
claims that generated the excessive malpractice and premium               The modest purpose of the legislature was to clear the dockets
costs. I further agree that the legislature intended to eliminate         for those cases that have merit to their claims. The whole
needless court costs and litigation by weeding out some of                statute is frustrated when we permit the claimant to ignore the
the spurious claims by requiring the patient to notify the                statute, file the suit, and then let the case take its course.
physician or health care provider sixty days before filing
suit. The purpose of the act was to keep cases from reaching              I would hold up the arm of the legislature and affirm the
the stage of a lawsuit, with its process, discovery, mag-                 judgment of the court of appeals, which instructs the trial
card and mimeographed multiple interrogatories, requests for              court to dismiss the suit.
admissions, and depositions. These procedures constitute the
per-hour costs of present litigation, even in the instance of the
                                                                          All Citations
spurious suit. It was this evil that article 4590i, section 4.01
purposed to eliminate.                                                    652 S.W.2d 934



End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    5
State v. Titan Land Development Inc., --- S.W.3d ---- (2015)
2015 WL 3637982

                                                                          Time within which State was required
                                                                          to object to special commissioners' award
                     2015 WL 3637982
                                                                          in condemnation proceeding, under statute
       Only the Westlaw citation is currently available.
                                                                          requiring objections to be filed by the
                 Court of Appeals of Texas,
                                                                          “first Monday following the 20th day” after
                    Houston (1st Dist.).
                                                                          commissioners filed their findings with the court,
                The State of Texas, Appellant                             began to run on date State actually filed award
                              v.                                          in the trial court, rather than date several days
              Titan Land Development Inc. and                             earlier on which State should have filed award,
                                                                          despite contention that State should not benefit
             Bauer–Hockley 550, L.P., Appellees
                                                                          from its own tardiness; statute requiring award
                  NO. 01–14–00899–CV |                                    to be filed on day decision was made or next
                 Opinion issued June 11, 2015                             working day did not provide a remedy or penalty
                                                                          for late filing, and time to object was clearly
Synopsis                                                                  linked to the date award was actually filed. U.S.
Background: State filed condemnation provision, seeking                   Const. Amend. 5; Tex. Prop. Code Ann. §§
to acquire 85.02 acres out of a 549.643–acre tract                        21.018(a), 21.048(1).
for construction of a highway. Special commissioners
were appointed, resulting in an award of $7,500,000 in                    Cases that cite this headnote
compensation to the landowners. State filed the award with
the trial court, and then filed objections. The County Civil
Court at Law No. 4, Harris County, granted landowners'
motion for entry of judgment in the absence of objections         On Appeal from County Civil Court at Law No. 4, Harris
and entered judgment, finding that State's objections were        County, Texas, Trial Court Case No. 1042641
untimely. State appealed.
                                                                  Attorneys and Law Firms

                                                                  Susan Desmarais Bonnen, Assistant Attorney General,
[Holding:] The Court of Appeals, Laura Carter Higley, J.,         Austin, TX, Randall K. Hill, Assistant Attorney General, Ken
held that time within which State was required to object began    Paxton, Attorney General of Texas, Charles E. Roy, First
to run on date State actually filed special commissioners'        Assistant Attorney General, James E. Davis, Deputy Attorney
award in the trial court, rather than date several days earlier   General for Civil Litigation, for Appellant.
on which State should have filed award.
                                                                  Charles B. McFarland, McFarland PLLC, Houston, TX, for
                                                                  Appellees.
Reversed and remanded.
                                                                  Panel consists of Justices Jennings, Higley, and Huddle.



 West Headnotes (1)                                                                        OPINION

                                                                  Laura Carter Higley, Justice
 [1]       Eminent Domain
              Objections and exceptions                            *1 This eminent-domain case involves a dispute over
           148 Eminent Domain                                     whether the State of Texas timely filed objections to the
           148III Proceedings to Take Property and Assess         special commissioners' award after the award was filed with
           Compensation                                           the trial court. On appeal, the State challenges the trial
           148k225 Assessment by Commissioners,                   court's “Judgment in the Absence of Objections to the Special
           Appraisers, or Viewers                                 Commissioners' Award.” In one issue, the State asserts that
           148k235 Objections and exceptions                      the trial court erred when it determined that the State had not
                                                                  timely filed its objections to the condemnation award.


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
State v. Titan Land Development Inc., --- S.W.3d ---- (2015)
2015 WL 3637982

                                                                  Titan and Bauer also pointed out that Property Code section
We reverse and remand.                                            21.018(a)“provides that a party must object to the findings
                                                                  of the Special Commissioners ‘on or before the first Monday
                                                                  following the 20th day after the day the commissioners file

                        Background                                their findings with the court.’ ” 2 They reasoned that, because
                                                                  section 21.048 required the award to be filed no later than
The underlying facts are undisputed. The State filed a petition   the next working day after its issuance, any objections to the
for condemnation, seeking to acquire 85.02 acres of land,         award were required to have been filed by the first Monday
out of a larger 549.643–acre tract, owned by Titan Land           after the expiration of 20 days following May 2, 2014. Titan
Development, Inc. (“Titan”) and Bauer–Hockley 550, L.P.           and Bauer asserted,
(“Bauer”) for the construction of State Highway 99 in Harris
County. The petition was filed in County Civil Court at                         *2 The twentieth day following
Law No. 4 (“the trial court”), which appointed three special                   May 2, 2014 was May 22, 2014,
commissioners “to assess the damages occasioned by such                        which made the following Monday,
condemnation.”                                                                 May 26, 2014, the deadline to file
                                                                               objections. However, May 26, 2014
On May 1, 2014, the special commissioners conducted a                          was Memorial Day, which is a legal
hearing at which the State's appraisal expert testified that                   holiday. Under such circumstances,
“just compensation” for the taking was $5,808,994. Titan                       the last day to file objections to the
and Bauer's appraisal expert testified that the landowners                     commissioners' findings was Tuesday,
should be compensated $7,950,780. That same day, the                           May 27, 2014.
commissioners signed a written statement in which they
determined that Titan and Bauer should be awarded                 1      SeeTEX. PROP. CODE ANN.. § 21.048 (Vernon 2014).
$7,500,000 as damages for the condemnation of their
                                                                  2      See id.§ 21.018(a) (Vernon 2014).
property. The commissioners provided a copy of the written
award to State's attorney in order for the State to file the      Titan and Bauer claimed that the State's objections, filed
written award with the trial court. The State filed the special   on May 30, 2014, were filed too late. Finally, they pointed
commissioners' award with the trial court on May 7, 2014.         to Property Code section 21.061, which provides, if timely
                                                                  objections are not filed, the court shall adopt the special
The trial court clerk sent a notice to the parties on May 9,
                                                                  commissioners' findings as the court's judgment. 3 Titan and
2014, stating “[t]hat the Award of Special Commissioners
                                                                  Bauer wrote, “This provision is mandatory in the absence of
was filed on May 7, 2014 in the amount of $7,500,000. You
                                                                  timely-filed objections, and the Court only has jurisdiction to
have until the first Monday following 20 days in which to file
                                                                  perform its ministerial duty of entering judgment on the award
Objections to this award and make an appeal for a Jury Trial.”
                                                                  of commissioners in this proceeding.”

On May 30, 2014, the State filed objections to the
                                                                  3      Seeid. § 21.061 (Vernon 2014).
special commissioners' award, asserting that the award was
excessive. The State also objected on the ground that the         The State responded to the motion to enter judgment. The
special commissioners “did not use the proper measure of          State disagreed with Titan and Bauer's position that the period
damages in arriving at the amount set forth in their decision     for filing objections to the special commissioners' award
and award.”                                                       began to run from the date the award should have been filed
                                                                  pursuant to section 21.048. The State asserted that, pursuant
On June 11, 2014, Titan and Bauer filed their “Motion             to Property Code section 21.018, the period to file objections
for Entry of Judgment in the Absence of Objections.”              to the award is calculated from the date the award is actually
They pointed out that, pursuant to section 21.048 of the          filed, which in this case was May 7, 2014. Using this date,
Texas Property Code, the special commissioners' award was         the State claimed that the deadline for filing objections to the
required to have been filed on the day the decision was made      award was June 2, 2014. Thus, its objections were timely filed
or the next working day. 1 Thus, the award should have been       on May 30, 2014.
filed in the trial court on May 1, 2014 or May 2, 2014.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
State v. Titan Land Development Inc., --- S.W.3d ---- (2015)
2015 WL 3637982

Titan and Bauer replied, reiterating that section 21.048                facts. We review questions of statutory construction de
requires the special commissioners' award to be filed on the            novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011).
day the decision is made or on the next working day. They               Our fundamental objective in interpreting a statute is “to
pointed out that the State failed to file the award pursuant to         determine and give effect to the Legislature's intent.” Am.
section 21.048 because it had filed the award six days later            Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex.2012).
than the date permitted by section 21.048. For this reason,             “The plain language of a statute is the surest guide to the
Titan and Bauer asserted, “The State cannot take advantage              Legislature's intent.” Prairie View A & M Univ. v. Chatha,
of its own delay to extend the statutory period within which            381 S.W.3d 500, 507 (Tex.2012).
objections must be filed.” They averred, “The State cannot
enlarge this Court's jurisdiction by holding the Award of the           When statutory text is clear, it is determinative of legislative
Special Commissioners beyond the statutory period required              intent, unless enforcing the plain meaning of the statute's
for its filing.”                                                        words would produce an absurd result. Entergy Gulf States,
                                                                        Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009). The words
The trial court granted Titan and Bauer's motion for entry of           of the statute cannot be examined in isolation, but must be
judgment. The trial court signed its “Judgment in the Absence           construed based on the context in which they are used. TGS–
of Objections to the Special Commissioners' Award.” In the              NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441
judgment, the trial court determined as follows: “On May 1,             (Tex.2011).
2014, after having heard the evidence presented to them, the
Special Commissioners entered an Award in the amount of
$7,500,000.00. Objections were to have been filed by May                B. Analysis
27, 2014. No objections to the Special Commissioners' Award             The State asserts that, on May 30, 2014, it timely filed its
were timely filed by any party to this lawsuit.” The trial court's      objections to the special commissioners' award. The State
judgment awarded the State title to the condemned property              relies on Property Code section 21.018(a) to support its
and ordered that Titan and Bauer recover $7,500,000.00 from             position that the period for filing the objections is calculated
the State.                                                              from May 7, 2014, the date the State filed the commissioners'
                                                                        award in the trial court. According to the State, under section
This appeal followed. In one issue, the State asserts, “The trial       21.018(a), it had until June 2, 2014 to file its objections.
court erred in entering a judgment in absence of objections
where the State's objections were filed within the statutory            Section 21.018, entitled “Appeal From Commissioners'
time period for the filing of objections.”                              Findings,” provides:

                                                                          (a) A party to a condemnation proceeding may object to the
On appeal, the parties maintain the positions they held in the
                                                                          findings of the special commissioners by filing a written
trial court. The State asserts that it timely filed its objections to
                                                                          statement of the objections and their grounds with the court
the special commissioners' award pursuant to Property Code
                                                                          that has jurisdiction of the proceeding. The statement must
section 21.018(a) because it filed the award before the first
                                                                          be filed on or before the first Monday following the 20th
Monday following the expiration of 20 days from the date that
                                                                          day after the day the commissioners file their findings with
the award was actually filed. In contrast, Appellees assert that,
                                                                          the court.
under the facts of this case, the period for filing objections
began to run from the date the State should have filed the                (b) If a party files an objection to the findings of the special
award, as specified in Property Code section 21.048.                      commissioners, the court shall cite the adverse party and
                                                                          try the case in the same manner as other civil causes.

                                                                        TEX. PROP.CODE ANN. § 21.018 (Vernon 2014).
             State's Deadline to File Objections
             to Special Commissioners' Award
                                                                        Appellees agree that the State had until the first Monday
A. Standard of Review                                                   following the expiration of 20 days to file objections to the
 *3 Resolution of which date began the period for the State             commissioners' award. However, Appellees assert that, in this
to file its objections to the special commissioners' award turns        case, the 20–day period began to run on the date that the
on the application of statutory language to the undisputed



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
State v. Titan Land Development Inc., --- S.W.3d ---- (2015)
2015 WL 3637982

award was required to be filed under section 21.048(1) of the       filing date of the award, irrespective of whether the State,
Property Code                                                       which filed award for commissioners, had failed to timely file
                                                                    award pursuant to section 21.048).
Section 21.048(1) provides:
                                                                    Undeniably, section 21.048's language, requiring the award
  After the special commissioners in an eminent domain              to be filed by the next work day after it is made, indirectly
  proceeding have assessed the damages, they shall:                 affects when a party's objections will be due. However,
                                                                    neither section 21.018 nor section 21.048 addresses the
     (1) make a written statement of their decision stating the
                                                                    remedy, or any penalty, for the untimely filing of the
     damages, date it, sign it, and file it and all other papers
                                                                    commissioners' award, whether the untimely filing is made
     connected with the proceeding with the court on the day
                                                                    by the commissioners or by a party on the commissioners'
     the decision is made or on the next working day after the
                                                                    behalf Rather, section 21.018 serves to ameliorate the effect
     day the decision is made[.]
                                                                    of an untimely filing by directly linking the period during
TEX. PROP.CODE ANN. § 21.048(1) (Vernon 2014).                      which a party must object to the date the award is filed.
                                                                    SeeTEX. PROP. CODE ANN.. § 21.018(a). In this way, the
According to Appellees, the special commissioners fulfilled         party desiring to object has the full time period in which to
their duty under section 21.048(1) when they “entrusted” the        object even when the award is filed late.
State to file the award with the trial court in accordance with
section 21.048(1). Under that provision, the State had until        If it had intended either (1) to make the starting point for the
May 2, 2014, which was the next work day after the award            objection period the same date that the award was required to
was made, to file the award with the trial court. Had the State     be filed under section 21.048 or (2) to restrict a party's ability
filed the award on May 2, 2014, the State's objections would        to benefit from section 21.018's objection period when that
have been due, pursuant to section 21.018(a), on May 27,            party played a role in causing the award to be filed late, the
2014. However, the State did not file the award until May 7,        Legislature could have enacted such provisions. SeeGarland,
2014, six days after the date required by section 21.048(1).        963 S.W.2d at 99 (“Had the Legislature intended the time
                                                                    period to run from the signing of the actual award, or from the
 *4 Appellees do not disagree that—pursuant to section              date that the award should have been filed in court, it could
21.018(a)—had the commissioners, rather than the State,             easily have said so.”). Absent such provisions and given the
untimely filed the award on May 7, 2014, the State's                plain language of section 21.018(a), we are without authority
deadline to file its objections would have been June 2, 2014.       to shorten the length of time that the State had to file its
However, Appellees assert that, because the State, not the          objections to the award.
commissioners, “delayed” filing the award until May 7, 2014,
the State should not benefit from its own tardiness; it should      We are mindful that sections 21.018 and 21.048 speak to
not be allowed “to enlarge” the period for filing its objections.   the special commissioners filing the award in the trial court,
Further, Appellees state that the statutory framework does          rather than the State filing the award. However, Appellees
not permit the State “[to] manipulate the time period within        have not cited authority permitting a court to deviate from
which its own objections could be filed by delaying in filing       section 21.018's provisions when the party filing the award
the award with the court, despite the mandatory obligation of       is the State rather than the commissioners. Thus, courts must
Section 21.048 of the Texas Property Code.”                         enforce section 21.018 as it is written, giving either party until
                                                                    the first Monday following the expiration of 20 days after the
As stated, “The plain language of a statute is the surest           commissioners' award is filed to object.
guide to the Legislature's intent.” Chatha, 381 S.W.3d at
507. Here, the plain language of the statutory provisions           We note that, in support of their position, Appellees point to
reveals that only one provision governs when objections             the following language in John v. State, 826 S.W.2d 138, 140
to the commissioners' award must be filed. That provision           (Tex.1992):
is section 21.018(a). SeeState v. Garland, 963 S.W.2d
                                                                                 [I]n a condemnation action, the
95, 97 (Tex.App.–Austin 1998, pet. denied) (holding that,
                                                                                 landowner is given a single
under plain statutory language, starting point for computing
                                                                                 opportunity to recover damages for
deadline to file objections to commissioners' award is actual
                                                                                 the taking of his property by the


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
State v. Titan Land Development Inc., --- S.W.3d ---- (2015)
2015 WL 3637982

                                                                        the amount of time in which the State may object. Section
             state for the public benefit.... As a
                                                                        21.018 appears to already anticipate noncompliance with the
             result, the procedures set forth in
                                                                        filing requirement of section 21.048 by providing that the
             the condemnation statute must be
                                                                        starting point to calculate when objections must be filed is the
             strictly followed and its protections
                                                                        date the award is actually filed rather than the date the award
             liberally construed for the benefit of
                                                                        should have been filed under section 21.048.
             the landowner.

                                                                        Moreover, in John, the statute was liberally construed to
 *5 In John, the trial court clerk did not mail notice of the
                                                                        alleviate the effects of section 21.018's time requirement for
commissioners' award to the property owners within the time
                                                                        filing objections when the property owner had not received
period required in Property Code section 21.049. Id. at 139.
                                                                        timely notice of the filing of the award. Id. The lack of
The clerk mailed the notice 22 days late. Id. At that point, the
                                                                        notice had limited the property owner's statutory right to
time for filing objections under section 21.018(a) had elapsed.
                                                                        timely object to the award. Seeid. at 139. In contrast, here,
Id. Two days after the clerk mailed the notice of award, the
                                                                        Appellees do not request the statutory provisions be construed
property owners filed their objections. Id.
                                                                        in a manner to aid them in preserving their statutory right to
                                                                        object, rather they seek to limit the State's right.
The Supreme Court of Texas held that the landowners'
objections were timely filed because the period to object to
                                                                        Given the plain language of section 21.018, we conclude that
the commissioners' award was tolled until the clerk mailed
                                                                        the State had until June 2, 2014 to file its objections to the
the notice of award as required by section 21.049. Id.
                                                                        special commissioners' award. The State's objections, filed on
The court characterized section 21.049 as being mandatory,
                                                                        May 30, 2014, were timely. We hold that the trial court erred
determining that “in condemnation cases, the clerk must
                                                                        when it granted the Appellees' motion for entry of judgment
comply with the notice provisions.” Id. at 140.
                                                                        and signed the “Judgment in the Absence of Objections to the
                                                                        Special Commissioners' Award.”
Here, Appellees assert that, similar to section 21.049, section
21.048 is mandatory. Appellees posit, “The language of
                                                                        We sustain the State's sole issue.
Section 21.048 is mandatory, and a liberal construction of
Section 21.048 for the benefit of the landowner does not
permit a mechanical operation of Section 21.018 to trump the
mandatory requirement of Section 21.048.”                                                        Conclusion

                                                                        We reverse the judgment of the trial court and remand for
It logically follows that a liberal construction of the statutory
                                                                        further proceedings.
scheme results in the tolling of the time for landowners to
file their objections when they have not been given proper
notice of the commissioners' award by the court clerk, as
                                                                        All Citations
in John. However, a liberal construction of section 21.048's
filing requirement does not logically result in a reduction of          --- S.W.3d ----, 2015 WL 3637982

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  5
Texas Dept. of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (2013)
56 Tex. Sup. Ct. J. 449



                     397 S.W.3d 162                                West Headnotes (13)
                 Supreme Court of Texas.

   TEXAS DEPARTMENT OF TRANSPORTATION                              [1]   Appeal and Error
          and City of Edinburg, Petitioners,                                Cases Triable in Appellate Court
                          v.                                             30 Appeal and Error
     A.P.I. PIPE AND SUPPLY, LLC and Paisano                             30XVI Review
                                                                         30XVI(F) Trial De Novo
        Service Company, Inc., Respondents.
                                                                         30k892 Trial De Novo
              No. 10–1020. | Argued Sept.                                30k893 Cases Triable in Appellate Court
                                                                         30k893(1) In general
          12, 2012. | Decided April 5, 2013.
                                                                         Whether a court has jurisdiction is a matter of law
Synopsis                                                                 that an appellate court decides de novo.
Background: Alleged purchaser of property brought inverse
                                                                         7 Cases that cite this headnote
condemnation action against city and Texas Department of
Transportation (TxDOT), alleging that defendants removed
dirt from area of drainage ditch easement without providing        [2]   Pleading
compensation. The County Court at Law No. 2, Hidalgo                         Scope of inquiry and matters considered in
County, Jaime Palacios, J., denied defendants' plea to the               general
jurisdiction, and defendants appealed. The Corpus Christi                302 Pleading
Court of Appeals, Thirteenth District, 2008 WL 99629,                    302III Responses or Responsive Pleadings in
affirmed. Subsequently, the County Court denied defendants'              General
second plea to the jurisdiction, and defendants appealed. The            302III(B) Dilatory Pleas and Matter in Abatement
Corpus Christi Court of Appeals, Thirteenth District, 328                302k111 Decision of Issue, and Proceedings
S.W.3d 82, affirmed. Defendants petitioned for review.                   Thereon
                                                                         302k111.36 Scope of inquiry and matters
                                                                         considered in general
                                                                         Evidence can be introduced and considered at
Holdings: The Supreme Court, Willett, J., held that:                     the plea to the jurisdiction stage if needed to
                                                                         determine a court's jurisdiction.
[1] judgment nunc pro tunc, purporting to render void prior
judgment granting city title to property, was void;                      3 Cases that cite this headnote

[2] innocent purchaser statute did not apply to alleged
                                                                   [3]   Eminent Domain
purchaser; and
                                                                            Jurisdiction
                                                                         Eminent Domain
[3] doctrine of equitable estoppel did not apply to bar city and
                                                                            Plea, answer and subsequent pleading
TxDOT from relying on prior judgment granting title to city.
                                                                         148 Eminent Domain
                                                                         148IV Remedies of Owners of Property; Inverse
Reversed.                                                                Condemnation
                                                                         148k286 Jurisdiction
Lehrmann, J., filed a concurring opinion, in which Guzman,               148 Eminent Domain
                                                                         148IV Remedies of Owners of Property; Inverse
J., joined.
                                                                         Condemnation
                                                                         148k293 Pleading
                                                                         148k293(2) Plea, answer and subsequent pleading
                                                                         In an inverse condemnation action, a trial court
                                                                         lacks jurisdiction and should grant a plea to the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Texas Dept. of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (2013)
56 Tex. Sup. Ct. J. 449

        jurisdiction where a plaintiff cannot establish a            simple title that city had sought in condemnation
        viable takings claim.                                        petition.

        13 Cases that cite this headnote                             Cases that cite this headnote


 [4]    Eminent Domain                                        [6]    Judgment
           Property and Rights Subject of                                Allowing amendment nunc pro tunc
        Compensation                                                 228 Judgment
        148 Eminent Domain                                           228VIII Amendment, Correction, and Review in
        148II Compensation                                           Same Court
        148II(B) Taking or Injuring Property as Ground               228k326 Allowing amendment nunc pro tunc
        for Compensation                                             A judgment nunc pro tunc can correct a clerical
        148k81 Property and Rights Subject of                        error in the original judgment, but not a judicial
        Compensation                                                 one.
        148k81.1 In general
        To recover under the constitutional takings                  3 Cases that cite this headnote
        clause, one must first demonstrate an ownership
        interest in the property taken. U.S.C.A.
                                                              [7]    Judgment
        Const.Amend. 5.
                                                                         Allowing amendment nunc pro tunc
        2 Cases that cite this headnote                              228 Judgment
                                                                     228VIII Amendment, Correction, and Review in
                                                                     Same Court
 [5]    Eminent Domain                                               228k326 Allowing amendment nunc pro tunc
           Matters concluded                                         An attempted nunc pro tunc judgment entered
        Judgment                                                     after the trial court loses plenary jurisdiction is
            Allowing amendment nunc pro tunc                         void if it corrects judicial rather than clerical
        148 Eminent Domain                                           errors.
        148III Proceedings to Take Property and Assess
                                                                     3 Cases that cite this headnote
        Compensation
        148k243 Conclusiveness and Effect of Award or
        Judgment in General                                   [8]    Judgment
        148k243(2) Matters concluded                                     Clerical errors
        228 Judgment
        228VIII Amendment, Correction, and Review in
                                                                     Judgment
        Same Court                                                       Allowing amendment nunc pro tunc
        228k326 Allowing amendment nunc pro tunc                     228 Judgment
        Judgment nunc pro tunc, purporting to render                 228VIII Amendment, Correction, and Review in
        void prior judgment granting city title to                   Same Court
        real property, was void and could not affect                 228k302 Nature of Errors or Defects
        validity of prior judgment, since alleged error              228k306 Clerical errors
                                                                     228 Judgment
        it purported to correct was judicial, not clerical;
                                                                     228VIII Amendment, Correction, and Review in
        prior judgment granted city fee simple ownership
                                                                     Same Court
        of property, judgment nunc pro tunc purported to
                                                                     228k326 Allowing amendment nunc pro tunc
        turn city's ownership into a mere easement, there
                                                                     A “clerical error” in a judgment, which can be
        was no showing that prior judgment really meant
                                                                     corrected by a judgment nunc pro tunc, is one
        to convey an easement rather than a fee simple,
                                                                     which does not result from judicial reasoning or
        and prior judgment had been based on a special
                                                                     determination.
        commissioners' award which had granted fee
                                                                     3 Cases that cite this headnote



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Texas Dept. of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (2013)
56 Tex. Sup. Ct. J. 449

                                                                       purchaser could bring inverse condemnation
 [9]    Judgment                                                       action relating to property, where alleged
            Allowing amendment nunc pro tunc                           purchaser had notice of city's adverse interest;
        228 Judgment                                                   alleged purchaser admitted that, prior to alleged
        228VIII Amendment, Correction, and Review in                   purchase, it knew of recorded judgment in prior
        Same Court                                                     condemnation action granting city fee simple
        228k326 Allowing amendment nunc pro tunc                       title to property. V.T.C.A., Property Code §
        Even a significant alteration to an original                   13.001.
        judgment may be accomplished through a
        judgment nunc pro tunc so long as it merely                    1 Cases that cite this headnote
        corrects a clerical error.

        Cases that cite this headnote                           [12]   Estoppel
                                                                            Particular state officers, agencies or
                                                                       proceedings
 [10]   Judgment
                                                                       Estoppel
            Clerical errors
                                                                           Municipal corporations in general
        Judgment
                                                                       156 Estoppel
            Allowing amendment nunc pro tunc
                                                                       156III Equitable Estoppel
        228 Judgment                                                   156III(A) Nature and Essentials in General
        228VIII Amendment, Correction, and Review in                   156k62 Estoppel Against Public, Government, or
        Same Court                                                     Public Officers
        228k302 Nature of Errors or Defects                            156k62.2 States and United States
        228k306 Clerical errors                                        156k62.2(2) Particular state officers, agencies or
        228 Judgment                                                   proceedings
        228VIII Amendment, Correction, and Review in                   156 Estoppel
        Same Court                                                     156III Equitable Estoppel
        228k326 Allowing amendment nunc pro tunc                       156III(A) Nature and Essentials in General
        If a signed judgment inaccurately reflects the true            156k62 Estoppel Against Public, Government, or
        decision of the court, then the error is clerical and          Public Officers
        may be corrected by entry of judgment nunc pro                 156k62.4 Municipal corporations in general
        tunc.                                                          Doctrine of equitable estoppel did not apply to
                                                                       bar city and Texas Department of Transportation
        Cases that cite this headnote                                  (TxDOT) from relying on judgment granting
                                                                       city fee simple title in property, for purposes
 [11]   Eminent Domain                                                 of determining whether alleged purchaser could
           Real property in general                                    bring inverse condemnation action relating to
                                                                       property, where TxDOT employee had agreed
        148 Eminent Domain
        148II Compensation                                             to judgment nunc pro tunc purporting to reduce
        148II(B) Taking or Injuring Property as Ground                 city's interest in property from fee simple
        for Compensation                                               to an easement; there was no showing that
        148k81 Property and Rights Subject of                          employee had acted to deliberately induce any
        Compensation                                                   action favorable to TxDOT, alleged purchaser
        148k82 Real property in general                                could have examined the conflicting judgments
        Innocent purchaser statute, protecting purchasers              and seen that judgment nunc pro tunc had
        from unrecorded property conveyances, did                      been issued erroneously, and applying estoppel
        not apply to alleged purchaser of property,                    would impair government function of managing
        and thus alleged purchaser could not rely on                   drainage project.
        judgment nunc pro tunc purporting to render void
        prior judgment granting city title to property,                Cases that cite this headnote
        for purposes of determining whether alleged


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Texas Dept. of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (2013)
56 Tex. Sup. Ct. J. 449

                                                                  Texas legal rules governing real-estate transactions demand
 [13]   Estoppel                                                  assiduousness, lest *165 uncertainty subvert the orderly
             Estoppel Against Public, Government, or              transfer of property. This inverse-condemnation dispute over
        Public Officers                                           ten acres in Hidalgo County asks a simple question: Who
          156 Estoppel                                            has title to the parcel? The answer turns on the validity of
          156III Equitable Estoppel                               conflicting recorded judgments:
          156III(A) Nature and Essentials in General
          156k62 Estoppel Against Public, Government, or            1. 2003 Judgment—which the Texas Department of
          Public Officers                                             Transportation (TxDOT) and the City of Edinburg
          156k62.1 In general                                         claim gives the City fee-simple ownership, subject to a
        For equitable estoppel to apply against the                   drainage easement granted to TxDOT.
        government, two requirements must exist: (1) the
        circumstances must clearly demand estoppel's                2. 2004 Judgment—which A.P.I. Pipe Supply, LLC and
        application to prevent manifest injustice, and (2)             Paisano Service Company, Inc. (collectively API) claim
        no governmental function can be impaired.                      gives API fee-simple ownership, subject to a drainage
                                                                       easement granted to the City (and, via subsequent
        1 Cases that cite this headnote                                conveyance, to TxDOT).

                                                                  In 2005, TxDOT began its drainage project, and API, relying
                                                                  on the 2004 Judgment, brought a takings claim for the
Attorneys and Law Firms                                           value of the removed soil. TxDOT counters that API lacks
                                                                  any ownership interest because the 2004 Judgment, which
*164 Boone Channing Slusher, Slusher & Associates,                purports to declare the 2003 Judgment “null and void,” is
McAllen, TX, for Amicus Curiae San Jacinto Title.                 itself void—to which API replies, even if the 2003 Judgment
                                                                  controls, API is an “innocent purchaser” entitled to ownership
Aaron Daniel Day, Texas Land Title Association, Austin, TX,
                                                                  under Property Code section 13.001.
for Amicus Curiae Texas Land Title Association.

Daniel T. Hodge, First Asst. Attorney General, David C.           We agree with TxDOT. The void 2004 Judgment cannot
Mattax, Director of Defense Litigation, Office of the Attorney    supersede the valid 2003 Judgment; API is statutorily
General, Greg W. Abbott, Attorney General of Texas, James         ineligible for “innocent purchaser” status; and equitable
William Kirk II, Lisa Marie McClain, Office of the Attorney       estoppel is inapplicable against the government in this case.
Gen., Jonathan F. Mitchell, Solicitor General Office of the       Because API's takings claim fails, we reverse the court of
Attorney General, Joseph David ‘Jody’ Hughes, Assistant           appeals' judgment and dismiss the suit.
Solicitor General Office of the Attorney General, Susan
Desmarais Bonnen, Office of the Attorney General of Texas,
William (Bill) J. Cobb III, Attorney General's Office, Deputy                               I. Facts
Atty. General for Civil Litigation, Austin, TX, for Petitioners
Texas Department of Transportation.                               The chain of title contains conflicting records, so we first
                                                                  describe how the City, TxDOT, and API obtained their
Analisa Figueroa, Charles V. Willette Jr., Willette and Guerra    purported interests in the land.
LLP, Brownsville, TX, for Petitioner The City of Edinburg.

Mark Edward Wilkins, Rolando Quintana, Wilkins &
Wilkins, McAllen, TX, for Respondents A.P.I. Pipe and                A. The 2003 Judgment Giving the City Ownership
Supply, L.L.C.
                                                                  Herschell White originally owned the land, and the City
Opinion                                                           brought a condemnation action so it could dig a drainage
                                                                  channel. As compensation for the land, the commissioners
Justice WILLETT delivered the opinion of the Court.               awarded, and White accepted, $207,249 (plus $17,000 for
                                                                  damage to the remainder of the property). The special



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Texas Dept. of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (2013)
56 Tex. Sup. Ct. J. 449

commissioners' report described the interest conveyed as
a “right-of-way” but also incorporated by reference the
                                                                                          II. Proceedings Below
City's original petition for condemnation, which described the
interest sought as a “fee title.” No one objected to the special     When TxDOT started digging, API filed an inverse-
commissioners' award, and the trial court adopted it as the          condemnation action against the City and TxDOT over the
judgment of the court (the 2003 Judgment). 1                         removed dirt. TxDOT and the City filed a plea to the
                                                                     jurisdiction, which the trial court denied. The court of appeals
1        See TEX. PROP.CODE § 21.061 (providing that
                                                                     affirmed, holding the 2004 Judgment was void but saying the
         if no party objects to the findings of the special          record was unclear as to whether API had notice of the 2003
         commissioners, the trial court “shall adopt the             Judgment. 4
         commissioners' findings as the judgment of the court”).
                                                                     4      Tex. Dep't of Transp. v. A.P.I. Pipe & Supply, LLC,
                                                                            No. 13–07–221–CV, 2008 WL 99629, at *3–*5, 2008
               B. The 2004 Judgment Nunc Pro
                                                                            Tex.App. LEXIS 276, at *8–*14 (Tex.App.-Corpus
                 Tunc Giving API Ownership
                                                                            Christi Jan. 10, 2008, no pet.) (mem.op.).
A year later, the same trial court entered a “Judgment Nunc          Upon remand to the trial court, TxDOT and the City produced
Pro Tunc” (the 2004 Judgment), which was agreed to by the            evidence that the 2003 Judgment was indeed recorded in the
City's and White's attorneys. A TxDOT employee apparently            county registry. TxDOT and the City filed a second plea to
also approved the 2004 Judgment by email. 2                          the jurisdiction, arguing that, because the 2004 Judgment was
                                                                     void and API had notice of the 2003 Judgment, the City
2                                                                    held fee-simple title to the land, subject only to TxDOT's
         The record is unclear as to why the parties agreed to the
                                                                     easement. The trial court denied the second plea to the
         2004 judgment, or why TxDOT, which did not yet have
                                                                     jurisdiction, and the court of appeals affirmed, concluding
         an interest in the property, would agree to the nunc pro
         tunc judgment.                                              that API was a good-faith purchaser for value since the 2004
                                                                     Judgment superseded the 2003 Judgment. 5
The 2004 Judgment purported to render the 2003 Judgment
“null and void.” The 2004 Judgment states that the City's
                                                                     5      328 S.W.3d 82, 90–92.
interest in the land was a “right of way easement” obtained
“for the purpose of opening, constructing and maintaining a
permanent channel or drainage ease *166 ment....” Unlike
the 2003 Judgment, the 2004 Judgment did not incorporate                                     III. Discussion
the special commissioners' report or the City's original
                                                                     [1]    [2]    Whether a court has jurisdiction is a matter of
condemnation petition. Rather, it referred to the City's interest
only as an easement, not fee-simple ownership.                       law we decide de novo. 6 Evidence can be introduced and
                                                                     considered at the plea to the jurisdiction stage if needed to
                                                                     determine jurisdiction. 7

                C. Subsequent Title Transfers
                                                                     6      Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d
Three months after the trial court signed the 2004 Judgment,                217, 226 (Tex.2004).
White sold the ten acres and some surrounding property to            7      Id. at 227.
     3
API. Both the 2003 Judgment and the 2004 Judgment were
                                                                      [3] [4] A trial court lacks jurisdiction and should grant a
recorded in the county registry before API purchased the
                                                                     plea to the jurisdiction where a plaintiff “cannot establish a
property. In 2005, the City granted TxDOT an easement to
build a drainage ditch and to remove any excavated “stone,           viable takings claim.” 8 Further, “[i]t is fundamental that, to
earth, gravel or caliche.”                                           recover under the constitutional takings clause, one must first
                                                                     demonstrate an ownership interest in the property taken.” 9
3        API paid $292,800 for approximately 34 acres, including     Thus, if API does not own the disputed land, the takings claim
         the 9.869 acres at issue in this case.                      is not viable and the trial court lacks jurisdiction. Given that



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Texas Dept. of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (2013)
56 Tex. Sup. Ct. J. 449

the dispositive question is whether API is the property owner,       15     Id. at 586.
the trial court was correct to consider the 2003 and 2004
                                                                     Here, the change was undeniably significant. The 2003
Judgments as extrinsic, undisputed evidence.
                                                                     Judgment granted a fee simple to the City, while the 2004
                                                                     Judgment purported to turn the City's outright ownership
8       Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468,      into a mere easement. Again, the fact that the change was
        491 (Tex.2012).
                                                                     significant is not fatal to the 2004 Judgment's nunc pro tunc
9       Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d   status. However, TxDOT and the City produced evidence
        637, 644 (Tex.2004).                                         showing that the 2003 Judgment correctly reflected the
For the reasons discussed below, we hold that API does not           underlying judicial determination, 16 and no party produced
                                                                     any evidence indicating that the 2004 Judgment was merely
own the land and cannot assert the good-faith purchaser 10
                                                                     correcting a clerical error. That is, nothing suggests that
 *167 or equitable estoppel doctrines. We thus conclude that
                                                                     the 2003 Judgment really meant to convey to the City an
the trial court should have granted the plea to the jurisdiction.
                                                                     easement rather than a fee simple.
10      We have jurisdiction over this interlocutory appeal under    16     There is circumstantial evidence that the 2003 Judgment
        Texas Government Code section 22.225(c) because of
                                                                            intended to award a fee simple rather than an easement.
        a conflict between the court of appeals' decision and a
                                                                            The condemnation award approved by the court in the
        decision of another court of appeals. See TEX. GOV'T
                                                                            2003 Judgment provided compensation of over $207,000
        CODE §§ 22.001(a)(2), .225(c). As explained below,
                                                                            for 10 acres in April 2003, whereas API purchased that
        the court of appeals' misapplication of the good-faith
                                                                            tract plus 20 more acres for approximately $90,000 more
        purchaser doctrine is inconsistent with Wall v. Lubbock,
                                                                            in August 2004.
        52 Tex.Civ.App. 405, 118 S.W. 886, 888 (Tex.Civ.App.-
        Austin 1908, writ ref'd).                                Further, the trial court in this case was by law required
                                                                 to adopt the award of the special commissioners, who in
                                                                 turn granted the fee-simple title the City sought in its
  A. The 2004 Judgment in Favor of the City Was Void.            condemnation petition. If parties do not timely object to a
                                                                 special commissioners' report, the trial court is required to
 [5] [6] [7] [8] [9] [10] A judgment nunc pro tunc
                                                                 enter “the [special] commissioners' findings as the judgment
can correct a clerical error in the original judgment, but not a
                                                                 of the court.” 17 Objection is timely only if raised within
judicial one. 11 An attempted nunc pro tunc judgment entered
after the trial court loses plenary jurisdiction is void if it   20 days of the special commissioners' award. 18 Here, the
                                                                 parties point to no evidence of a timely objection. Indeed,
corrects judicial rather than clerical errors. 12 “A clerical
                                                                 the 2003 Judgment indicated that no party objected to the
error is one which does not result from judicial reasoning or
                                                                 award. Therefore, the trial court could “only perform its
determination.” 13 Even a significant alteration to the original ministerial function and render judgment based upon the
judgment may be accomplished through a judgment nunc pro
                                                                 commissioner's *168 award.” 19 The trial court did just
                                                      14
tunc so long as it merely corrects a clerical error. If “the     that in the 2003 Judgment, awarding compensation for fee
signed judgment inaccurately reflects the true decision of the   simple title. Conversely, the 2004 Judgment exceeded the
                                                            15
court,” then “the error is clerical and may be corrected.”       scope of this “ministerial function” by shrinking the interest
                                                                 awarded by the special commissioners from a fee simple to
11      Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986) (per     an easement. As the special commissioners' award was not
        curiam).                                                 changed pursuant to timely objection, the 2004 Judgment was
                                                                 void.
12      Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973).
13      Andrews, 702 S.W.2d at 585.                                  17     TEX. PROP.CODE § 21.061.

14      See id. at 584–86 (using a nunc pro tunc judgment to add     18     Id. § 21.018. The time for making objections to the
        an easement to a deed; a prior court order had required             special commissioners' award is tolled if the parties are
        the easement, so exclusion of the easement was clearly              not given proper notice of the special commissioners'
        a clerical mistake).                                                award. John v. State, 826 S.W.2d 138, 141 n. 5



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Texas Dept. of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (2013)
56 Tex. Sup. Ct. J. 449

       (Tex.1992). However, there is no evidence here that there
       were any notice problems regarding the award.               22     Wall, 118 S.W. at 888.
19     John, 826 S.W.2d at 141 n. 5. See also Pearson v. State,    Codified at Property Code section 13.001, the innocent-
       159 Tex. 66, 315 S.W.2d 935, 938 (1958) (noting that        purchaser doctrine is simply inapplicable here:
       if there are no objections to the special commissioners'
       award, “[n]o jurisdiction is conferred upon the court to                A conveyance of real property or an
       do anything more than accept and adopt the [special                     interest in real property ... is void as
       commissioners'] award as its judgment, and this follows                 to ... a subsequent purchaser for a
       by operation of law and the ministerial act of the county               valuable consideration without notice
       judge”).
                                                                               unless the instrument has been ...
One more timing issue cuts against API: the expiration of                      proved and filed for record as required
the trial court's plenary power. Such power usually lasts 30                   by law. 23
     20
days.    The 2004 Judgment, though labeled a Judgment
Nunc Pro Tunc, was undeniably a substantive alteration to          23     TEX. PROP.CODE § 13.001(a).
the 2003 Judgment. However, the trial court's plenary power
to make substantive alterations had expired 300–plus days          By its terms, the statute protects purchasers from unrecorded
                                                                   property conveyances—covert, off-the-books transfers that
before the 2004 Judgment was rendered. 21
                                                                   leave buyers unaware of adverse interests. But one cannot be
                                                                   “innocent” of a recorded judgment, and here, API concedes
20     See TEX.R. CIV. P. 329b(d)–(f).                             it knew of the recorded 2003 Judgment before it purchased
21     Here, the 2004 Judgment was entered 351 days after the      the property.
       2003 Judgment.
                                                                   API essentially argues that the 2003 Judgment was
Because the 2004 Judgment was void, it did not convey
                                                                   superseded by the 2004 Judgment because the latter purported
anything to anyone. Instead, under the 2003 Judgment, the
                                                                   to nullify the former. But our caselaw does *169 not
City continued to hold fee-simple title. White continued to
                                                                   support the idea that earlier instruments in a chain of title
have no interest in the land, and API could not buy from White
                                                                   can be rendered meaningless by later instruments that are
what White did not own.
                                                                   contradictory. 24 Instead, we refused the writ of error in a
                                                                   case that explicitly held that the innocent-purchaser doctrine
                                                                   cannot protect those who claim under a void deed. 25 Further,
          B. The Innocent–Purchaser and Equitable
                                                                   the consistent theme in our cases is that “[a] purchaser is
             Estoppel Doctrines Are Inapplicable.
                                                                   charged with knowledge of the provisions and contents of
API urges that, even if the 2004 Judgment is void such that        recorded instruments. Purchasers are also charged with notice
White had no interest to convey, API should still prevail          of the terms of deeds which form an essential link in their
because it depended on the 2004 Judgment when it bought            chain of ownership.” 26 That is, a purchaser is deemed to have
the land from White. API presents two theories, neither            notice of all recorded instruments, not just the most recent
persuasive.                                                        one. Thirty years ago, we stated in Westland Oil Development
                                                                   Corp. v. Gulf Oil Corp.:

                                                                   24     API does not argue, and we do not consider, whether
        1. The Innocent–Purchaser Statute, by its
     Terms, Does not Apply to Recorded Judgments.                         the 2004 Judgment is a “correction instrument” under
                                                                          recently enacted sections 5.027–.031 of the Property
 [11] The court of appeals held that API was a good-faith                 Code.
purchaser for value. However, we refused the writ of error in      25     Wall, 118 S.W. at 888.
a case holding that this doctrine does not protect a purchaser
whose chain of title includes a void deed: “One holding            26     Cooksey v. Sinder, 682 S.W.2d 252, 253 (Tex.1984) (per
under a void title cannot claim protection as an innocent                 curiam).
purchaser.” 22


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Texas Dept. of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (2013)
56 Tex. Sup. Ct. J. 449

                                                                                 otherwise as against those who have purchased in
  [A]ny description, recital of fact, or reference to other                      good faith in reliance thereon.
  documents puts the purchaser upon inquiry, and he is                        Id. at 675 (emphases added).
  bound to follow up this inquiry, step by step, from one
  discovery to another and from one instrument to another,
  until the whole series of title deeds is exhausted and a                   *170 2. API Cannot Prevail on Equitable
  complete knowledge of all the matters referred to and                      Estoppel, Which Is Inapplicable Against
                                                                                 the Government on These Facts.
  affecting the estate is obtained. 27
27     637 S.W.2d 903, 908 (Tex.1982) (citations and                 [12] API argues that TxDOT's acquiescence to the 2004
       quotations omitted) (emphases in original).                  Judgment bars it from objecting now to what it accepted then.
In other words, API, constructively and actually aware of the       While the argument has a certain force—purchasers should
recorded 2003 Judgment, was responsible for squaring it with        be able to rely upon facially valid judgments—this argument
the contradictory 2004 Judgment.                                    goes to equitable estoppel, a doctrine inapplicable against the
                                                                    government in this case.
Slaughter v. Qualls, 28 on which the court of appeals
                                                                     [13] For estoppel to apply against the government, two
relied, is not to the contrary. Slaughter suggests that a
                                                                    requirements must exist: (1) “the circumstances [must]
recorded but void foreclosure sale could protect a subsequent
                                                                    clearly demand [estoppel's] application to prevent manifest
good-faith purchaser. 29 However, the statement was dicta
                                                                    injustice,” 32 and (2) no governmental function can be
because the subsequent purchaser's claim was not before
                                                                    impaired. 33 Neither requirement exists here.
the Court. 30 In any event, the Slaughter dicta suggests that
such purchasers merit protection under equitable estoppel
                                                                    32     City of White Settlement v. Super Wash, Inc., 198 S.W.3d
principles (describing a contrary result as “inequitable” 31 )
                                                                           770, 774 (Tex.2006) (quotations omitted).
and not under the innocent-purchaser doctrine codified in
the Property Code. Section 13.001 defines the elements of           33     Id. at 776–78.
innocent-purchaser status for all cases, and courts may not
                                                                    As to the first requirement, we have applied estoppel to
disregard or rewrite the statute when they believe straight-up
                                                                    prevent manifest injustice if, “officials acted deliberately
application would be inequitable. The statute is categorical
                                                                    to induce a party to act in a way that benefitted the
and makes no case-by-case exceptions: A purchaser with
notice of an adverse interest cannot claim innocent-purchaser       [government].” 34 Here, no evidence suggests deliberate
status.                                                             inducement (as opposed to mistaken acquiescence) by
                                                                    TxDOT or the City, or that they benefitted when the City's fee
28                                                                  title was erroneously relegated to a mere easement. 35 (White
       139 Tex. 340, 162 S.W.2d 671 (1942).
                                                                    benefitted handsomely, though, being paid twice for fee title
29     Id. at 675.                                                  to the same property.) This case stands in stark contrast to two
30                                                                  cases where we have held the government estopped—cases
       Id. at 674.
                                                                    where the government stalled private citizens from providing
31     That is, Slaughter says (in its explanation of its dicta):   proper notice of claims until after the notice deadline had
            It is true that under circumstances such as we          passed. 36
            have here, those who purchased interests in or took
            liens on the land in good faith from [the purchaser
                                                                    34     Id. at 775.
            of a deed voided by a wrongful foreclosure sale]
            acquired good title as against [the debtor who had      35     Apparently for the first time, API argued at oral argument
            originally executed the deed of trust]; but this is
                                                                           before this Court that TxDOT and the City did receive
            so not on the theory that the title actually passed,
                                                                           a benefit from their interest being merely an easement.
            but rather on the theory that [the debtor], by the
                                                                           API alleges that it let the government use other portions
            execution of the deed of trust, made it possible for
                                                                           of API's property, which API thought was required so
            the trustee to create the appearance of good title in
                                                                           that the government could make reasonable use of its
            [the purchaser at the foreclosure sale], and it would
                                                                           purported easement. However, we find this argument
            be inequitable to permit [the debtor] now to show



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Texas Dept. of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (2013)
56 Tex. Sup. Ct. J. 449

       unavailing. First, we note that this last-minute allegation           of drainage ditches was a “quasi-judicial function[ ]
       of the government's benefit from the easement is not                  subject to governmental immunity,” whereas “the acts
       preserved for our review. TEX.R.APP. P. 33.1(a).                      of constructing and maintaining a storm sewer are
       Further, this last-minute allegation is not even enough to            proprietary at common law”). The Texas Tort Claims
       lead us to remand to allow API to amend its jurisdictional            Act also classifies governmental acts related to “sanitary
       allegations. Any purported benefit to TxDOT and the                   and storm sewers” as “governmental functions.” TEX.
       City is minimal compared to the substantial loss to the               CIV. PRAC. & REM.CODE § 101.0215(9). While this
       government for giving up its right to fee-simple title. This          legislative interpretation of “governmental functions” is
       purported benefit is “simply too attenuated to establish              binding only in the context of the Tort Claims Act, we
       grounds for equitable relief.” Super Wash, 198 S.W.3d at              have previously found that “the statute is helpful” in our
       775. Finally, availability of “alternative remedies weighs            interpretation of whether an activity is a “governmental
       strongly against” estoppel against the government, id.,               function.” Super Wash, 198 S.W.3d at 776–77.
       and API may well have other remedies available for the
                                                                      39     If we found that the government was estopped, the
       government's alleged wrongful use of API's surrounding
       property in digging the ditch.                                        government would have only a few options for removing
                                                                             dirt from the property, such as paying API to remove the
36     Super Wash, 198 S.W.3d at 774–76 (explaining the                      dirt, relying on API to remove the dirt, or obtaining API's
       significance of the only two cases where we have applied              consent to let the government dump the dirt on API's
       estoppel against the government, Roberts v. Haltom City,              surrounding land. Any of these options could impair
       543 S.W.2d 75 (Tex.1976) and City of San Antonio v.                   plans to expand or improve the ditches by impeding the
       Schautteet, 706 S.W.2d 103 (Tex.1986)).                               dirt-removal process.
We have also held that the fact that a governmental error
was “discoverable” militates against applying estoppel. 37                                    IV. Conclusion
The error here was discoverable because API could have
examined the conflicting judgments and seen that the 2004             The 2004 Judgment was void. The pleadings and evidence
Judgment was issued in error. Red flags were plentiful: (1)           establish that API holds no interest in the land and thus
the 2004 Judgment was styled a nunc pro tunc even though it           “cannot establish a viable takings claim,” 40 meaning the trial
made a judicial change, not a clerical one; (2) it was issued
                                                                      court lacked jurisdiction. 41 We reverse the court of appeals'
long after the 2003 Judgment; (3) it nowhere mentioned
                                                                      judgment and dismiss the case.
the unobjected-to special commissioners' award. We thus
conclude that the manifest-injustice requirement for applying
                                                                      40     Hearts Bluff Game Ranch, 381 S.W.3d at 491.
estoppel against the government is not satisfied.
                                                                      41     Id. at 491–92.
37     Super Wash, 198 S.W.3d at 775.
 *171 The second requirement—that there is no impairment
                                                                      Justice LEHRMANN filed a concurring opinion, in which
to a governmental function—is also absent. Designing and
                                                                      Justice GUZMAN joined.
planning a drainage ditch is a governmental function, 38
and applying estoppel here would impair that governmental
function. If TxDOT and the City are estopped, their ability           Justice LEHRMANN, joined by Justice GUZMAN,
to manage the drainage project would have to accommodate              concurring.
API's ownership of the land, complicating the government's            I join the Court's opinion because I agree that the 2004
                                                                      Judgment, which was issued after the expiration of the trial
ability to carry out its project. 39 The land was purchased
                                                                      court's plenary power, makes a judicial change to the 2003
through eminent domain for the precise purpose of digging
                                                                      Judgment and is therefore void. I write separately to clarify
a drainage ditch, and restricting the government's ability to
                                                                      why I agree.
freely dig on the land burdens that undisputed governmental
function.
                                                                      As the Court notes, “a significant alteration to the original
                                                                      judgment may be accomplished through a judgment nunc pro
38     City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex.1997)         tunc so long as it merely corrects a clerical error.” 397 S.W.3d
       (holding that, under common law, “design and planning”         at 167 (citing Andrews v. Koch, 702 S.W.2d 584, 584–86



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        9
Texas Dept. of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (2013)
56 Tex. Sup. Ct. J. 449

(Tex.1986) (per curiam)). Indeed, clerical errors frequently        the City sought a decree “vesting in [the City] a right-
concern matters of substance; they are simply errors “made          of-way ... more fully described in [the City]'s [p]etition.”
in entering final judgment” and not “in rendering a final           The condemnation petition, in the paragraph setting out
judgment.” Escobar v. Escobar, 711 S.W.2d 230, 231                  the purpose for the action, alleges that the land is sought
(Tex.1986). Thus, the fact that the change made in the 2004         for the purpose of “laying out, opening, constructing,
Judgment—which awards the City an easement as opposed               reconstructing, maintaining, and operating ... a certain right-
to the fee simple interest awarded in the 2003 Judgment—            of-way,” specifically the U.S. Highway 281 Drainage outfall
is undeniably significant has no bearing on the validity of         ditches project.
the nunc pro tunc judgment. Rather, the change was invalid
because the 2003 Judgment correctly reflects the true decision      However, such language does not call into question the effect
of the court, and the 2004 Judgment therefore improperly            of the 2003 Judgment. The term “right-of-way,” used alone,
makes a judicial *172 change beyond the expiration of the           may mean either a “right of passage” over a parcel of land or
court's plenary power such that the 2004 Judgment is void.          the parcel of land itself that “is to be used as a right of way.”
                                                                    Tex. Elec. Ry. Co. v. Neale, 151 Tex. 526, 252 S.W.2d 451,
In many cases, depending on the state of the record, it             454 (1952); see also Lakeside Launches, Inc. v. Austin Yacht
may be difficult for an appellate court to discern which            Club, Inc., 750 S.W.2d 868, 871 (Tex.App.-Austin 1988, writ
of two conflicting judgments accurately “reflects the true          denied). There is no indication that the condemnation petition,
decision of the [trial] court,” 397 S.W.3d at 167 (quoting          the special commissioners' award, or the 2003 Judgment used
Andrews, 702 S.W.2d at 586) (internal quotation marks               the term “right-of-way” synonymously with an easement or
omitted), and, in turn, whether a judgment nunc pro tunc is         right of passage; rather, it was used to denote the property
valid. However, this case does not present such a dilemma.          itself.
The evidence establishing the fee simple nature of the
conveyance reflected in the 2003 Judgment is conclusive.            Further, the City's agreement with the issuance and recording
In that judgment, the trial court ordered that the special          of the 2004 Judgment nunc pro tunc, while potentially
commissioners' award “is hereby made[ ] the judgment of             relevant to an equitable claim, does not call into question the
this [c]ourt.” In turn, the special commissioners “award[ed]        true decision of the trial court in entering the 2003 Judgment.
to [the City] all rights described and prayed for in [the City]'s   At that time, the trial court had before it the City's request for
Original Statement and Petition for Condemnation.” And the          a judgment for “fee title” in the property and the unobjected-
City's condemnation petition requested “a final judgment of         to special commissioners' award, which awarded all rights
condemnation vesting in the City of Edinburg the fee title          prayed for in the petition. Again, because the 2003 Judgment
to said land and the rights therein.” Further, as noted by          adopted the award as the judgment of the *173 court, it
the Court, the trial court in this case essentially conducted       is clear that the 2003 Judgment awarded fee title to the
a ministerial duty in entering judgment on the special              City. Therefore, the 2004 Judgment purporting to award an
commissioners' findings, to which no one had objected. 397          easement, even if the City agreed to it, goes beyond the
S.W.3d at 167–68. In light of this evidence, there is no            correction of a clerical error and is void.
question that the “true decision of the court” was to award fee
simple title. Thus, the 2004 Judgment's award of an easement        It bears repeating that the invalidity of the 2004 Judgment
to the City did not merely correct a clerical error and could       is not evident from the fact that the two judgments are
not be accomplished through a judgment nunc pro tunc.               facially in conflict, which in and of itself does not raise
                                                                    suspicion. In reality, most nunc pro tunc judgments conflict
API contends the use of the term “right-of-way” in the              substantively with the underlying judgments they are entered
City's condemnation petition and the 2003 Judgment renders          to correct. The nunc pro tunc judgment that merely corrects a
it unclear whether the 2003 Judgment was awarding                   misspelled word or a grammatical error is an anomaly. After
fee simple title or an easement. For example, the 2003              all, reasonable parties do not generally file lawsuits to correct
Judgment awards the City “title (right of way) described            trivial mistakes such as missing commas or misspelled words.
in attached Exhibit ‘A’ [the special commissioners' award]          Rather, reasonable litigants go to court to correct clerical
and ‘B’ [condemnation petition],” and orders issuance of            errors affecting substantive rights. A thorough review of this
a writ of possession to allow the City to “enter upon               record, however, conclusively shows that the true decision of
said right-of-way.” The commissioners' award notes that



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              10
Texas Dept. of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162 (2013)
56 Tex. Sup. Ct. J. 449

                                                                       the doctrine of equitable estoppel, which does not apply
the trial court, as reflected in the 2003 Judgment, was to award
                                                                       against the government under the circumstances of this case.
fee simple title to the City.
                                                                       Accordingly, I concur in the Court's opinion and judgment.
Given that the 2004 Judgment was void, API could not
acquire legal title from White because the City owned the
                                                                       All Citations
land. I agree with the Court that any recovery against
TxDOT and the City would necessitate application of                    397 S.W.3d 162, 56 Tex. Sup. Ct. J. 449

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               11
