Affirmed and Memorandum Opinion filed =
March 26,=20
2009.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-08-00900-CV
____________
THE CITY OF=20
HOUSTON, =
Appellant
V.
LARRY EDGAR=20
ESTRADA AND MAYER BROWN, L.L.P., F/K/A MAYER, BROWN, ROWE & =
MAW,=20
L.L.P., =
Appellees
On Appeal from the =
129th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2004-23665
M E M O R=20
A N D U M O P I N I O N
Appellant=20
City of Houston appeals from the denial of its third plea to the=20
jurisdiction arising from requests for information under the Texas =
Public=20
Information Act (ATPIA@). =20
See Tex. Gov=3Dt Code=20
Ann. __ =
552.001-.353 (Vernon 2004). The city contends that the trial =
court=20
erred because (1) appellee Mayer Brown is not a statutorily =
defined=20
Arequestor@ =
entitled=20
to seek mandamus relief under the TPIA; (2) the city=3Ds handling=20
of the requests at issue is discretionary rather than ministerial; =
and (3)=20
Mayer Brown as a firm is not legally capable of acting as an =
Aattorney@ =
under the=20
TPIA. We affirm.
Background
A jury=20
convicted Larry Edgar Estrada of capital murder and sentenced him =
to death=20
in 1998. The Court of Criminal Appeals affirmed =
Estrada=3Ds=20
conviction and sentence, and the United States Supreme Court =
denied=20
certiorari. Estrada v. State, No. AP-73,054 (Tex. =
Crim. App.=20
Sept. 15, 1999) (unpublished), available at=20
=
http://www.cca.courts.state.tx.us/opinions/OpinionInfo.asp?OpinionID=3D53=
60,=20
cert. denied, 531 U.S. 828 (2000).
The Court=20
of Criminal Appeals denied Estrada=3Ds petition=20
for a writ of habeas corpus on October 9, 2002. Estrada =
filed a=20
petition for a writ of habeas corpus in the United States District =
Court=20
for the Southern District of Texas shortly thereafter. On =
December=20
30, 2002, the District Court signed an order appointing attorneys =
Charles=20
S. Kelley and James E. Tancula to represent Estrada in his federal =
habeas=20
action. The order does not state that Kelley and Tancula =
were=20
partners at Mayer Brown, but it does list Mayer Brown=3Ds mailing=20
address as that of Kelley and Tancula.
On April=20
18, 2003, attorney Rebecca Stewart of Mayer Brown sent a written =
request=20
for information to the city under the TPIA in connection with=20
Estrada=3Ds habeas=20
petition. Having received no response, Stewart sent the city =
two=20
more written TPIA requests on May 2, 2003; one restated the April =
18=20
request in its entirety, while the other requested any firearms =
reports=20
related to Estrada=3Ds incident=20
number. By September 12, 2003, Stewart had received no =
response to=20
these requests. That day Stewart e-mailed copies of the =
April 18=20
request and the May 2 requests to the Houston Police=20
Department=3Ds open=20
records e-mail address. None of Stewart=3Ds=20
communications stated that she, Kelley, Tancula, or Mayer Brown=20
represented Estrada.
On January=20
21, 2004, paralegal Elizabeth Hardy of Mayer Brown sent a written =
request=20
for information to the city under the TPIA seeking records =
relating to=20
eight different cause numbers involving Catalino Yanez. =20
Hardy=3Ds letter=20
did not state that she was representing Yanez or Estrada. =
The city=20
contacted the Texas Attorney General on February 6, 2004 and =
asserted that=20
the information requested by Hardy was excepted from public=20
disclosure. The city informed Hardy on February 18, 2004 =
that four=20
of the eight cause numbers listed in the request related to a case =
for=20
which information already had been made available to Mayer Brown, =
and that=20
the remaining information was excepted from disclosure. The =
Attorney=20
General responded to the city on March 15, 2004, concluding that =
the=20
requested information was excepted from disclosure due to common =
law=20
privacy concerns. Hardy received copies of the =
correspondence=20
between the city and the Attorney General.
On March=20
18, 2004, attorney Charles S. Kelley sent 13 written requests for=20
information to the city under the TPIA pertaining to (1) Estrada; =
(2)=20
Houston Police Department Gang Task Force investigations into =
Primeros Los=20
Carnales and three individuals; (3) Houston Police Department and =
homicide=20
files regarding five individuals; (4) criminal activity statistics =
for=20
eight specified zip codes; (5) all criminal incidents at a =
specified=20
business during the years 1979 through 1983; and (6) one specified =
individual=3Ds=20
involvement as a victim, witness, or complainant in any criminal=20
incident. Kelley received no response from the city with =
regard to=20
these 13 requests.
The=20
requests sent on April 18, 2003, May 2, 2003, September 12, 2003, =
January=20
21, 2004, and March 18, 2004 from Stewart, Hardy, and Kelley did =
not state=20
that they were made on behalf of Mayer Brown or Estrada, and did =
not state=20
that they were made by counsel for an inmate. All of the =
written=20
requests were made on Mayer Brown letterhead. The =
city=3Ds letters=20
to Hardy were sent to Mayer Brown=3Ds business=20
address and addressed to AElizabeth=20
A. Hardy[;] Mayer, Brown, Rowe and Maw.@
Estrada=20
and Mayer Brown filed a petition for writ of mandamus in Harris =
County=20
district court on May 6, 2004 asking the trial court to direct the =
city to=20
comply with the TPIA requests dated April 18, 2003, May 2, 2003, =
September=20
12, 2003, January 21, 2004, and March 18, 2004. The city =
filed a=20
plea to the jurisdiction with regard to Estrada on September 3, =
2004=20
arguing that Estrada lacked standing to seek mandamus relief under =
the=20
TPIA because (1) he was not a Arequestor@ =
as=20
defined by the statute; and (2) the city had discretion under the =
statute=20
to ignore TPIA requests made by incarcerated individuals. =
The trial=20
court signed an order on October 11, 2004 granting the =
city=3Ds plea and=20
dismissing Estrada, leaving Mayer Brown as the sole relator in the =
case. The trial court=3Ds order=20
does not specify the grounds on which it granted the =
city=3Ds plea=20
with regard to Estrada.
Mayer=20
Brown filed its third amended mandamus petition on April 30, =
2008. =20
The city filed its third plea to the jurisdiction with regard to =
Mayer=20
Brown on May 5, 2008. The trial court signed an order on =
September=20
11, 2008 denying the city=3Ds third=20
plea. The city filed an interlocutory appeal from this =
denial on=20
September 24, 2008.
Analysis
The city contends =
that the=20
trial court erred by denying its plea to the jurisdiction because =
Mayer=20
Brown is not a Arequestor@ under the TPIA and =
therefore=20
lacks standing to bring a mandamus action under the =
statute. =20
The city further contends that even if Mayer Brown is a =
Arequestor,@ =
it still=20
lacks standing because the city=3Ds action=20
under the TPIA with respect to the requests is discretionary =
rather than=20
ministerial. In addition, the city contends that Mayer Brown =
lacks=20
standing because the firm is not legally capable of serving as an=20
inmate=3Ds=20
Aattorney@ =
under the=20
TPIA. <=
SPAN=20
style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 150%; FONT-FAMILY: =
Shruti">
The city asserts that =
only the=20
individuals who signed the requests dated=20
April 18, 2003, May 2, 2003, September 12, 2003, January 21, 2004, =
and=20
March 18, 2004=20
qualify as Arequestors@ who have standing to =
seek=20
mandamus relief under the TPIA. Mayer Brown contends that =
Stewart,=20
Hardy, and Kelley were the law firm=3Ds agents acting with =
actual=20
authority when they sent their respective TPIA requests, making =
the firm a=20
Arequestor@ with standing under =
the TPIA=20
to seek mandamus relief.
The TPIA entitles =
persons to=20
obtain complete information about the affairs of government and =
the=20
official acts of public officials and employees unless otherwise =
expressly=20
provided by law. See Tex. Gov=3Dt Code Ann. =
_ 552.001(a). =
The TPIA is=20
to be construed liberally in favor of granting requests to =
implement its=20
underlying policy. See id. _ 552.001(a), =
(b).
The TPIA defines a =
Arequestor@ as Aa person who submits =
a request=20
to a governmental body for inspection or copies of public=20
information.@ Id. =
_ 552.003(6). A =
requestor=20
may file a petition for writ of mandamus to compel a governmental =
body to=20
make information available if that body fails to either (1) =
request an=20
Attorney General=3Ds decision; or (2) =
supply=20
public information that the Attorney General has determined is not =
excepted from disclosure. Id. _ 552.321(a).=20
In Concerned =
Community=20
Involved Development, Inc. v. City of Houston, 209 S.W.3d 666, =
673=20
(Tex. App._Houston [14th Dist.] =
2006, pet.=20
denied), we addressed arguments that an entity seeking mandamus =
relief=20
under the TPIA (1) failed to allege that it submitted a written =
request=20
for information under the TPIA; (2) lacked standing because it was =
not a=20
Arequestor@ under the TPIA; and =
(3) could=20
not obtain a writ of mandamus. We held that these issues =
went to the=20
merits of the case because they involved compliance with the=20
TPIA=3Ds statutory =
requirements and=20
bore on the entity=3Ds right to =
relief. See=20
id. at 673-74 (citing Dubai Petroleum Co. v. Kazi, 12 =
S.W.3d=20
71, 76-77 (Tex. 2000)). Therefore, we held that a motion for =
summary=20
judgment _ rather than a plea =
to the=20
jurisdiction _ was the proper =
vehicle by=20
which the city should have challenged the entity=3Ds right to mandamus =
relief=20
under the TPIA. Id. at 674; see also Kazi, 12 =
S.W.3d=20
at 76-77 (quoting 21 C.J.S. Courts _ 16, at 23 (1990))=20
(A>The right of a =
plaintiff to=20
maintain a suit, while frequently treated as going to the question =
of=20
jurisdiction, has been said to go in reality to the right of the =
plaintiff=20
to relief rather than to the jurisdiction of the court to afford=20
it.=3D@). =20
In the present case, =
the city=20
filed a plea to the jurisdiction to challenge Mayer =
Brown=3Ds right to seek =
mandamus relief=20
under the TPIA, just as it did in Concerned =
Community. Here,=20
as in Concerned Community, the city contends that Mayer =
Brown lacks=20
standing because it does not qualify as a Arequestor@ under the TPIA =
_ a contention that =
goes to the=20
merits of Mayer Brown=3Ds right to =
relief. =20
Because the city=3Ds challenge to Mayer=20
Brown=3Ds asserted status as =
a=20
Arequestor@ under the TPIA goes =
to the=20
merits of Mayer Brown=3Ds right to relief, a =
plea to=20
the jurisdiction is not the appropriate vehicle for bringing such =
a=20
challenge. The city=3Ds arguments should =
have been=20
asserted in a motion for summary judgment. See Concerned=20
Cmty., 209 S.W.3d at 673-74; see also Kazi, 12 S.W.3d =
at=20
76-77.
We=20
overrule the city=3Ds issue=20
regarding Mayer Brown=3Ds asserted=20
status as a Arequestor@ =
as=20
defined by the TPIA.
The city also =
contends that=20
Mayer Brown lacks standing because the TPIA gives the city =
discretion to=20
withhold the requested information in this case from any requestor =
other=20
than Estrada=3Ds attorney, and =
because Mayer=20
Brown cannot serve as Estrada=3Ds attorney. =
These=20
contentions rely on an assertion that Mayer Brown is not a proper=20
Arequestor@ in its own =
right. If the=20
trial court determines Mayer Brown to be a Arequestor@ in its own right, =
any opinion=20
we might express on these issues would be an improper advisory=20
opinion. See McAllen Med. Ctr. v. Cortez, 66 S.W.3d =
227, 232=20
(Tex. 2001). A plea to the jurisdiction is not the =
appropriate means=20
for raising these contentions. See Concerned Cmty., =
209=20
S.W.3d at 673-74; see also Kazi, 12 S.W.3d at=20
76-77.
We=20
overrule the city=3Ds issues=20
regarding its asserted discretion under the TPIA to withhold the =
documents=20
requested by Mayer Brown and Mayer Brown=3Ds ability=20
to serve as Estrada=3Ds=20
attorney.
Conclusion
The trial=20
court=3Ds denial=20
of the city=3Ds plea to=20
the jurisdiction is affirmed.
/s/ =20
William J. Boyce
Justice
Panel consists of =
Justices=20
Frost, Brown, and Boyce.
1 =20
A party may appeal from an interlocutory order of a district court =
that=20
denies a plea to the jurisdiction by a governmental unit. =
Tex. Civ.=20
Prac. & Rem. Code Ann. _ 51.014(a)(8) (Vernon 2008). The =
city is a=20
governmental unit; therefore, we have jurisdiction over this =
interlocutory=20
appeal. See id.; Tex. Civ. Prac. & Rem. Code Ann. =
_ 101.001(3)(B) (Vernon =
2005).
2 =20
To the extent that the city=3Ds brief may be read to raise an issue =
regarding=20
Mayer Brown=3Ds standing to seek attorneys=3D fees, we do not address the =
issue. In its=20
September 11, 2008 order denying the city=3Ds plea to the jurisdiction, the trial =
court=20
explicitly withheld ruling on the availability of =
attorneys=3D fees to Mayer Brown. Therefore, =
we express=20
no opinion on the issue. See McAllen Med. Ctr. v. =
Cortez, 66=20
S.W.3d 227, 232 (Tex.=20
2001). |