Frost Dissent in

Kessling v. Friendswood ISD (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(Hedges)
(
suit alleging violations of the Texas Open Meetings Act (TOMA), Texas Public Information Act (TPIA),
and
Texas Education Code)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Chief Justice Hedges  
Before Chief Justice Hedges, Justices Brock Yates and Frost    
14-07-01063-CV  Nancy Kessling v. Friendswood Independent School District, and Patricia Hanks    
Appeal from 56th District Court of Galveston County
Trial Court Judge: Lonnie Cox
[T]his court should sustain the first issue in its entirety, reverse the trial court's judgment
as to all of Kessling's claims regarding the Meetings Act and the Information Act, and
remand for further proceedings.  To the extent it does not do so, I respectfully dissent.
Dissenting Opinion by Justice Frost Kessling v. Friendswood ISD  [pdf]

D I S S E N T I N G   O P I N I O N

A concerned citizen filed suit against a school district and its superintendent alleging, among other things, various
past violations of the Texas Open Meetings Act and the Texas Public Information Act.  The citizen alleged that
these violations showed a pattern and practice by the school district of violating these two statutes. As to both
statutes, the citizen sought a declaratory judgment regarding the past violations that allegedly show a pattern and
practice, and the citizen also sought mandamus or injunctive relief requiring the school district to comply with these
two statutes in the future.  The trial court granted the defendants' plea to the jurisdiction and motion for summary
judgment and dismissed all of the citizen's claims.  In her opening brief on appeal, the citizen asserts that she
seeks a declaratory judgment regarding the past violations of these two statutes, allegedly showing a pattern and
practice, and that she seeks mandamus or injunctive relief requiring the school district to comply with these two
statutes in the future.

The majority correctly concludes that the citizen's claims for declaratory relief as to the Texas Open Meetings Act
are not moot and that in her request for mandamus or injunctive relief as to this statute the citizen does not seek
an advisory opinion.  Likewise, the majority correctly concludes that the trial court erred in dismissing the citizen's
Texas Public Information Act claims to the extent they sought to compel disclosure as to unfulfilled requests.  
However, as to the citizen's request for declaratory relief regarding requests that were fulfilled in the past,
although in a manner that allegedly violated the Texas Public Information Act, the majority incorrectly concludes
that these claims are moot because, on appeal, the citizen does not assert that she is seeking declaratory relief to
show a pattern and practice that would form a basis for mandamus or injunctive relief.  Contrary to the majority's
conclusion, in her appellant's brief, the citizen does state that she is asserting similar declaratory, mandamus, and
injunctive relief under both the Texas Open Meetings Act and the Texas Public Information Act.  Therefore, this
court should hold that none of the citizen's claims for declaratory relief regarding violations of the Texas Public
Information Act are moot and that in her request for mandamus or injunctive relief regarding this statute the citizen
does not seek an advisory opinion.  Because it does not, I respectfully dissent.
                    
Allegations in the Citizen's Live Petition

In her live petition, appellant/plaintiff Nancy Kessling asserts, among other things, similar allegations and requests
for relief regarding the Texas Open Meetings Act (“Meetings Act") and the Texas Public Information Act
(“Information Act").  In suing defendants/appellees Friendswood Independent School District (“School District") and
its superintendent Patricia Hanks (collectively the “School District Parties"), Kessling made the following allegations:

The [School District] has a pattern and practice of violating the notice and open meeting provisions of the
[Meetings Act], as evidenced by the fact that [the School District] has continued to violate the [Meetings Act] prior
to and during the pendency of this suit.  Kessling seeks a declaratory judgment under the [Uniform Declaratory
Judgments Act] that [the School District] has violated the [Meetings Act] through its past actions.  Kessling seeks
injunctive relief to prevent [the School District] from continuing to violate the [Meetings Act] through these actions.
. . .
Plaintiff Kessling seeks a declaratory judgment regarding each of these violations, and a writ of mandamus and/or
injunctive relief to require that the [School District] comply with the procedural requirements of the [Meetings Act] .
. .
. . .
The [School District] has demonstrated a pattern and practice of failing and refusing to either release public
information or to request attorney general decisions to authorize withholding the information.  The [School District]
has demonstrated a pattern and practice of refusing to release information listed in the [Information Act] as
information that should be released without question and without delay.  TEX. GOV'T CODE ANN. §552.022.  The
[School District] has demonstrated a pattern and practice of delaying the release of information  for an inordinately
long time, sometimes months, failing to comply with the timeliness requirements of the [Information Act].  Kessling
seeks a declaratory judgment under the Uniform Declaratory Judgment [sic] Act that [the School District] has
violated the [Information Act] for each of the alleged incidents that constitute a part of the pattern and practice.
. . .
Plaintiff Kessling seeks a declaratory judgment regarding each of these violations, and a writ of mandamus and/or
injunctive relief to require that the [School District] comply with the procedural requirements of the [Information  
Act] and to compel disclosure of all requested information . . .
. . .
Plaintiff respectfully requests that, upon trial of this case, the Court:

1) find that Defendants have violated the requirements of the [Meetings Act] and order that the Defendants
comply with the Act . . .

2) find that Defendants have violated the requirements of the [Information Act] and order that the Defendants
comply with the procedural requirements of the Act . . .

As to both the Meetings Act and the Information Act, Kessling sought a declaratory judgment as to past violations
of these statutes, which she alleged constituted a pattern and practice.  Then, based on these past violations,
Kessling sought mandamus or injunctive relief requiring the School District to comply with these two statutes in the
future.

The School District Parties' Motion For Summary Judgment and Plea to the Jurisdiction

The trial court granted the School District Parties' “Motion for Summary Judgment and Plea to the Jurisdiction."  As
to Kessling's Meetings Act and the Information Act claims, the School District Parties did not specify whether they
were asserting a plea to the jurisdiction or a motion for summary judgment.  As to both the Meetings Act and the
Information Act claims, the School District Parties asserted that the trial court lacked jurisdiction based on
mootness and Kessling's alleged request for an advisory opinion.  These arguments constitute an attack on the
trial court's jurisdiction and thus fall within the plea to the jurisdiction.  As to the Information Act claims, the School
District Parties also asserted that section 552.3215 of the Government Code prohibits Kessling from obtaining the
declaratory, injunctive, and mandamus relief that she seeks in this case.  See Tex. Gov't Code Ann. § 552.3215
(Vernon 2004). This argument constitutes an attack on the merits of Kessling's claims and is part of the summary-
judgment motion.
                      
The Citizen's Opening Brief on Appeal

In pertinent part, Kessling makes the following statements in her opening brief on appeal:

Kessling seeks a declaration that [the School District] has violated the [Information Act], [the Meetings Act], and
Education Code in a specific manner, and an order requiring that [the School District] comply with these laws in
the future to avoid these violations. . .
. . .
Kessling filed this action, alleging a pattern and practice of [Meetings Act], [Information Act], and Education Code
violations. . .
. . .
Kessling asserted that her public information requests remain unfulfilled to this day, and she sought both
mandamus and declaratory relief to cure [the School District's] past and ongoing violations of the [Information Act]
. . .
. . .
In paragraph 6.17 of her petition, Kessling seeks a declaratory judgment on each of the alleged violations and a
writ of mandamus and/or an injunction to “require that the [School District] comply with the procedural
requirements of the [Information  Act] and to compel disclosure of all requested information."  Kessling sought the
same relief in her general prayer.

(emphasis in original).  The Supreme Court of Texas has stressed that appellate courts must construe an
appellant's brief “reasonably, yet liberally" so as to “reach the merits of an appeal whenever reasonably possible."
Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008); see also Ditta v. Conte, No. 07-1026, CS.W.3d.C,C. 2009 WL
1566989, at *2 (Tex. June 5, 2009) (construing petitioner's brief liberally to contain argument that it did not
expressly contain because it contained similar and related arguments).  Under this construction, Kessling, in her
opening brief, asserts that she seeks declaratory relief as to past violations of the Information Act, including
violations of the procedural requirements of the statute in cases in which the School District already has provided
the requested information.[1]  Kessling also asserts in her opening brief that, based on these past violations, she
seeks mandamus or declaratory relief to order the School District to comply with the Information Act in the future.  
Therefore, the majority incorrectly concludes that Kessling has failed to sufficiently brief that she seeks
declaratory relief as to past procedural violations of the Information Act and that she seeks mandamus or
injunctive relief to prevent future violations of this statute.[2]  See ante at p. 13.

The Effect of the Citizen's Adequate Briefing

Because Kessling adequately briefed the relief that she sought regarding the past procedural violations of the
Information Act, this court should conclude, as it does for the claims regarding the Meetings Act, that Kessling's
declaratory judgment claims are not moot and her claims for injunctive or mandamus relief do not contain a
request for an advisory opinion. In adjudicating the jurisdictional challenges to the Meetings Act claims, the
majority concludes that the trial court has jurisdiction because Kessling seeks to use the alleged pattern and
practice of past violations as a basis for showing her entitlement to mandamus or injunctive relief as to future
violations.  See ante at p. 8-9.  As to the Meetings Act claims, the majority correctly notes that a decision that the
claims are not moot or unripe does not speak to the merits of these claims.  See ante at p. 9; Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000) (stating that courts may not reach the merits of the parties'
claims in deciding jurisdictional issues); In re Sullivan, 157 S.W.3d 911, 920 (Tex. App.- Houston [14th Dist.] 2005,
orig. proceeding [mand. denied]) (refusing to consider arguments attacking the merits of the claims in deciding
whether trial court clearly abused its discretion by denying plea to the jurisdiction).  Instead of finding briefing
waiver, the majority should apply the same analysis to the Information Act claims as to fulfilled requests that the
majority applies to the Meetings Act claims.

However, in discussing the same jurisdictional issues as to the Information Act claims, the majority incorrectly
states that the merits of these claims are at issue on appeal.[3]  The majority states that Kessling has not argued
on appeal that the Information Act affords the mandamus or injunctive relief that she seeks.  See ante at p. 13.  
The majority further asserts that Kessling has not briefed “the issue of whether the [Information Act] affords her
the right to seek mandamus or injunctive relief instructing [the School District Parties] to follow the [Information Act]
in the future."  Id. at p. 14, n.9 (emphasis added).  The majority concludes that Kessling has not argued on appeal
that she is seeking mandamus or injunctive relief as to the fulfilled Information Act requests. See id. at p. 13-14.  In
addition, the majority suggests that, even if Kessling's appellate briefing were sufficient, this court would analyze
the mootness and advisory-opinion issues differently as to the Information Act claims because of differences in the
merits of those claims.  See id.  However, the relief Kessling seeks as to the alleged Information Act violations
regarding fulfilled requests is substantially similar to the relief she seeks as to the alleged Meetings Act violations.  
Presuming for the sake of argument that Kessling's claims for mandamus or injunctive relief as to the alleged
Meetings Act violations have merit but that, under the applicable statutes and equitable principles, Kessling is not
entitled to mandamus or injunctive relief as to the Information Act claims, these issues regarding the merits would
not affect the jurisdictional analysis in the instant appeal.  See Bland Indep. Sch. Dist., 34 S.W.3d at 554-55; In re
Sullivan, 157 S.W.3d at 920.

Therefore, this court should sustain the first issue in its entirety, reverse the trial court's judgment as to all of
Kessling's claims regarding the Meetings Act and the Information Act, and remand for further proceedings.  To the
extent it does not do so, I respectfully dissent.

/s/      
Kem Thompson Frost

Justice

Panel consists of Chief Justice Hedges and Justices Yates and Frost (Hedges, C.J., majority).

[1]  Kessling alleges that the School District has a pattern and practice of violating certain procedural requirements of the Information
Act, for example the requirement that “[a]n officer for public information of a governmental body shall promptly produce public
information for inspection, duplication, or both on application by any person to the officer." Tex. Gov't Code Ann. § 552.221(a) (Vernon
2004) (emphasis added).    

[2]  According to the majority, Kessling does not argue on appeal “that she is entitled to seek mandamus or injunctive relief , as she
did in connection with her [Meetings Act] claims, instructing appellees to follow the law in the future."  Ante at p. 13.  The majority then
states that Kessling “neither argues that [the Information Act] allows for such relief nor seeks any other injunctive or other affirmative
relief as [to] her requests [that] have been fulfilled."  Id.

[3]  The merits of the Information Act claims were challenged by the summary-judgment ground based on section 552.3215 of the
Government Code.  However, the majority correctly concludes that this ground lacks merit, and the School District Parties did not
attack the Information Act claims on any other basis.  See ante at p. 10-12.