Opinion · Texas Supreme Court

Greater Houston Partnership v. Ken Paxton, Texas Attorney General And Jim Jenkins

468 S.W.3d 51

Type: Opinion
Court: Texas Supreme Court
Jurisdiction: Texas
Date: 2015-06-29
Topic: general

recognizing that PIA “imposes considerable disclosure obligations on ‘governmental bodies’” | explaining that “the meaning of a word or phrase, especially one in a list, should be known by the words immediately surrounding it” | holding entity not “supported in whole or in part by public funds” not “governmental body” under Public Information Act | noting that because common words often have multiple dictionary definitions, courts look to contextual clues in statute to determine which definition is “most apposite” | explaining that “[u]ndefined terms in a statute are typically given their ordinary meaning” | adopting ordinary meaning even though it might result in “overlap between ‘in part’ and the neighboring statutory language” | providing statutory language cannot be determined in isolation and must be drawn from context in which used | PIA defines “governmental body as one of twelve different types of entities” (internal quotations omitted) | “[E]ven if an undefined term has multiple meanings, we recognize and apply only the meanings that are consistent with the statutory scheme as a whole.” | “The statute’s first contextual clue emerges from the words immediately surrounding [the word in question].” | “[A]n entity’s disclosure obligations under the []PIA hinge on whether it is in fact a governmental body.” (internal quotations omitted) | “Transparency is a real concern, to be sure, and the []PIA’s liberal-construction mandate reflects the depth of this interest. But liberal construction is not tantamount to boundless reach.” | “We only resort to rules of construction or extrinsic aids when a statute’s words are ambiguous.” (citing Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)) | "[W]e recognize and apply only the meanings that are consistent with the statutory scheme as a whole." (citing State v. $1,760.00 in U.S. Currency , 406 S.W.3d 177 , 180 (Tex. 2013) ) | although non-profit corporation did not constitute “governmental body” under PIA and not required to disclose requested information, nothing prevented requestor from seeking “public information” from governmental entity directly (internal quotations omitted) | term’s use in the context of the statute can impart more precise meanings | “The canon of statutory construction known as noscitur a sociis—‘it is known by its associates’—holds that the meaning of a word or phrase, especially one in a list, should be known by the words immediately surrounding it.” | “The canon of statutory construction known as noscitur a sociis—‘it is known by its associates’—holds that the meaning of a word or phrase, especially one in a list, should be known by the words immediately surrounding it.” | “The canon of statutory construction known as noscitur a sociis—‘it is known by its associates’—holds that the meaning of a word or phrase, especially one in a list, should be known by the words immediately surrounding it.” | “The canon of statutory construction known as noscitur a sociis —‘it is known by its associates’— holds that the meaning of a word or phrase, especially one in a list, should be known by the words immediately surrounding it.” | embracing both as tools of construction

Citator

Cited by: 60 opinions

IN THE SUPREME COURT OF TEXAS
══════════
No. 13-0745
══════════

GREATER HOUSTON PARTNERSHIP, PETITIONER,

KEN PAXTON, TEXAS ATTORNEY GENERAL; AND JIM JENKINS, RESPONDENTS

═════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
═════════════════════════════════════════

JUSTICE BOYD, joined by JUSTICE JOHNSON and JUSTICE WILLETT, dissenting.

Forty-two years ago, the Texas Legislature passed what has become “widely regarded as

the strongest and most successful open government law in the country.”1 Just three years later, in

this Court’s first opinion addressing the new Texas Open Records Act,2 we confirmed that it is

the Legislature’s policymaking role to balance “the public’s right of access” against “potential

abuses of the right,” and the Court’s role is merely “to enforce the public’s right of access given

by the Act.” Indus. Found. of the S. v. Tex. Indus. Accident Bd.,

540 S.W.2d 668, 675

 (Tex.

1976). Balancing these interests, the Legislature decided that the Act should apply to “the part,


        1
             City of Dall. v. Abbott,

304 S.W.3d 380

, 395 n.5 (Tex. 2010) (Wainwright, J., dissenting); see also
CHARLES L. BABCOCK ET AL., OPEN GOVERNMENT GUIDE: OPEN RECORDS AND MEETINGS LAWS IN TEXAS 1–2 (6th
ed. 2011) (describing Texas Public Information Act as “among the strongest in the nation” and “among the most
liberal in the United States”), available at http://www rcfp.org/rcfp/orders/docs/ogg/TX.pdf.
        2
           Act of May 19, 1973, 63d Leg., R.S., ch. 424, 1973 Tex. Gen. Laws 1112–18 (codified at TEX. REV. CIV.
STAT. art. 6252-17a). In 1993, the Legislature codified the Act in the Texas Government Code and renamed it the
Texas Public Information Act. Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 1, secs. 552.001–.353,

1993 Tex. Gen. Laws 583

, 594–607 (codified at TEX. GOV’T CODE §§ 552.001–.353).
section, or portion” of any “organization [or] corporation . . . that is supported in whole or in part

by public funds.” TEX. GOV’T CODE § 552.003(1)(A)(xii). That may be bad policy, or it may be

good policy, but it is the policy of Texas, and this Court’s only task is to enforce it.

       To enforce the Legislature’s policy choice in this case, we must decide what it means for

a “part, section, or portion” of a corporation to be “supported in whole or in part by public

funds.” See id. The Court adopts the narrowest construction possible, identifying two

requirements that appear nowhere in the statute’s language. The Court’s all-or-nothing

construction is irreconcilable with the provision’s express inclusion of a “part, section, or

portion” of an entity that is “supported in whole or in part by public funds.” See id. (emphasis

added). Striving to be faithful to the Act’s plain language, mindful of its express mandate that

courts construe it liberally in favor of access to information, and respectful of the many prior

decisions of the Texas Attorneys General charged with interpreting and enforcing the Act, I

would hold that a “part, section, or portion” of a private organization or corporation is

“supported in whole or in part by public funds” and thus a “governmental body” if it (1) receives

public funds, (2) not as compensation or consideration paid in exchange for “specific goods” or

“specific measurable services,” but as a general or unrestricted payment provided to subsidize or

underwrite the entity’s activities, and (3) those activities promote a purpose, interest, or mission

that the governmental and private entities share and would each pursue even in the absence of

their contractual relationship. Because the evidence establishes all three of these elements in this

case, I would hold on this record that the Greater Houston Partnership is a governmental body.

Because the Court holds otherwise, I respectfully dissent.




                                                   2
                                                       I.
                                                   Background

         This case presents a single question of statutory construction: what does the Texas Public

Information Act mean when it refers to a “part, section, or portion” of an entity that is “supported

in whole or in part by public funds”? Id. Purporting to rely on “[f]amiliar interpretive guides and

established canons of construction,” ante at __, the Court discards over forty years of legal

interpretations and announces a brand new interpretation that, at best, reflects the Court’s

concerns instead of the Legislature’s language. In light of the Court’s analysis, and to place the

issue in perspective, I begin by highlighting the Act’s relevant requirements, the reasons for its

enactment, prior constructions of the language at issue, and the evidence here regarding the

Partnership and its support.

A.       Requirements of the Act

         The Public Information Act requires the “officer for public information of a

governmental body”3 to “promptly produce public information” upon request. TEX. GOV’T CODE

§ 552.221(a). “Public information” means information “that is written, produced, collected,

assembled, or maintained under a law or ordinance or in connection with the transaction of

official business,” either (1) “by a governmental body;” (2) “for a governmental body” if the

governmental body owns the information, has a right of access to it, or “spends or contributes

public money for the purpose of writing, producing, collecting, assembling, or maintaining the

information;” or (3) “by an individual officer or employee of a governmental body in the



         3
           An “officer for public information” is the governmental body’s chief administrative officer (or, in the case
of a 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. GOV’T CODE §§ 552.201–.202.


                                                          3
officer’s or employee’s official capacity and the information pertains to official business of the

governmental body.” Id. § 552.002(a). “Information is in connection with the transaction of

official business if the information is created by, transmitted to, received by, or maintained by an

officer or employee of the governmental body in the officer’s or employee’s official capacity, or

a person or entity performing official business or a governmental function on behalf of a

governmental body, and pertains to official business of the governmental body.” Id. § 552.002(a-

1).

       The Act does not require a governmental body to produce public information that is

“considered to be confidential by law, either constitutional, statutory, or by judicial decision.” Id.

§ 552.101. The Act itself provides numerous other exceptions to its disclosure requirement,

which include, among other things, certain personnel records, id. § 552.102, litigation records,

id. § 552.103, information that “would give advantage to a competitor or bidder,” id. § 552.104,

attorney-client information, id. § 552.107, trade secrets and commercial financial information, id.

§ 552.110, personal and family information of governmental employees, id. § 552.117(a), and

“information [that] relates to economic development negotiations involving a governmental body

and a business prospect that the governmental body seeks to have locate, stay, or expand in or

near the territory of the governmental body,” id. § 552.131(a). The Act does not allow a

governmental body to unilaterally decide for itself whether it can withhold requested

information. Instead, a governmental body that wishes to withhold information in response to a

request must ask the Attorney General to decide whether the information fits within one of the

Act’s exceptions. Id. § 552.301(a).




                                                  4
        It is difficult to overstate the Attorney General’s role in this process. The Act assigns to

the Attorney General the duty to “maintain uniformity in the application, operation, and

interpretation” of the Act and authorizes the Attorney General to “publish any materials,

including detailed and comprehensive written decisions and opinions, that relate to or are based

on this chapter.” Id. § 552.011. Upon receipt of a governmental body’s request for a decision, the

Attorney General considers comments and arguments from any interested person, id.

§ 552.304(a), and then must “promptly render a decision” on whether the requested information

is within one of the Act’s exceptions, id. § 552.306(a); see also id. § 552.306(b) (requiring the

Attorney General to issue “a written opinion” and provide a copy to the requestor). Through its

Open Records Division, the Attorney General’s Office issues thousands of open records letter

rulings every year, including more than 23,000 in 2014, and it is on pace to surpass that number

this year.4 If a governmental body fails to request an Attorney General decision when and as




        4
             See Open Records Letter Rulings (ORLs), OFFICE OF THE ATT’Y GEN. OF TEX.,
www.texasattorneygeneral.gov/open/index_orl.php (last visited June 22, 2015). Texas law authorizes the Attorney
General to announce legal determinations in various forms. The Government Code, for example, authorizes the
Attorney General to provide “a written opinion” to certain governmental officials addressing “a question affecting
the public interest or concerning the official duties of the requesting person.” TEX. GOV’T CODE § 402.042(a). The
Attorney General’s determinations under this authority are commonly referred to as “attorney general opinions” and
are 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 TEX., www.texasattorneygeneral.gov/opinion/about-attorney-general-
opinions (last visited June 22, 2015). In addition, the Public Information Act authorizes and requires the Attorney
General to issue a “decision,” in the form of a “written opinion,” announcing whether a governmental body may
withhold information in response to a request under the Act. TEX. GOV’T CODE §§ 552.301(a), .306(a), (b). Pursuant
to this authority, Attorneys General sometimes issue “open records decisions,” which “are formal opinions relating
to the Public Information Act” that “usually address novel or problematic legal questions and are signed by the
Attorney General.” See Open Records Decisions (ORDS), OFFICE OF THE ATT’Y GEN. OF TEX.,
www.texasattorneygeneral.gov/og/open-records-decisions-ords (last visited June 22, 2015). These decisions are
named numerically using the initials “ORD” as a prefix. See id. More often, Attorneys General have resolved open
records questions by issuing “open records letter rulings,” which “[u]nlike Open Records Decisions, [are] informal
letter rulings . . . applicable only to the specific documents and circumstances surrounding them[.]” See Open
Records       Letter       Rulings     (ORLs),       OFFICE       OF      THE     ATT’Y      GEN.      OF      TEX.,
www.texasattorneygeneral.gov/open/index_orl.php (last visited June 22, 2015). These rulings are named
numerically using the initials “OR” and the year of issuance as a prefix. See id. Through the years, Texas Attorneys

                                                         5
required, the requested information “is presumed to be subject to required public disclosure and

must be released unless there is a compelling reason to withhold the information.” Id. § 552.302.

        If a governmental body refuses to request an Attorney General decision or refuses to

produce public information or information that the Attorney General has determined is public

and not excepted from disclosure, the Attorney General or a requestor may file suit for a writ of

mandamus compelling the governmental body to make the information available. Id. § 552.321.

Conversely, a governmental body may file suit against the Attorney General, seeking declaratory

relief from compliance with the Attorney General’s decision. Id. § 552.324(a). In that suit,

however, a governmental body can only rely on exceptions it asserted when it requested the

Attorney General’s decision, unless the exception is based on a federal law requirement or

involves another person’s property or privacy interests. Id. § 552.326(a), (b).

        The Act’s requirements apply only to a “governmental body,” which the Act defines to

mean:

        (i)      a board, commission, department, committee, institution, agency, or office
                 that is within or is created by the executive or legislative branch of state
                 government and that is directed by one or more elected or appointed
                 members;

        (ii)     a county commissioners court in the state;

        (iii)    a municipal governing body in the state;

        (iv)     a deliberative body that has rulemaking or quasi-judicial power and that is
                 classified as a department, agency, or political subdivision of a county or
                 municipality;

        (v)      a school district board of trustees;


General have utilized all three methods to address open records issues, including the issue of what constitutes a
“governmental body” under the Act.


                                                       6
       (vi)     a county board of school trustees;

       (vii)    a county board of education;

       (viii)   the governing board of a special district;

       (ix)     the governing body of a nonprofit corporation 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, Tax
                Code;

       (x)      a local workforce development board created under Section 2308.253;

       (xi)     a nonprofit corporation that is eligible to receive funds under the federal
                community services block grant program and that is authorized by this
                state to serve a geographic area of the state; and

       (xii)    the part, section, or portion of an organization, corporation, commission,
                committee, institution, or agency that spends or that is supported in whole
                or in part by public funds[.]

Id. § 552.003(1)(A)(i)–(xii). The question here is whether the Greater Houston Partnership is

“supported in whole or in part by public funds,” and thus a “governmental body” under part (xii).

“Public funds” means “funds of the state or of a governmental subdivision of the state.” Id.

§ 552.003(5).

B.     Reasons for the Act

       The Public Information Act is unique in its extensive explanation of the policies that led

to its enactment. As the Court explains, the Legislature first adopted the Act in response to the

“Sharpstown scandal.” Ante at __. The Act begins by expressing the “fundamental philosophy”

that “government is the servant and not the master of the people” and “the policy of this state that

each person is entitled, unless otherwise expressly provided by law, at all times to complete

information about the affairs of government and the official acts of public officials and

employees.” TEX. GOV’T CODE § 552.001(a). While the people of Texas have delegated


                                                  7
governing authority to public employees, they “do not give their public servants the right to

decide what is good for the people to know and what is not good for them to know.” Id. Because

“[t]he people insist on remaining informed so that they may retain control over the instruments

they have created,” the Act expressly provides that it “shall be liberally construed to implement

this policy.” Id. Courts must construe the Act’s provisions “in favor of disclosure of requested

information.” Jackson v. State Office of Admin. Hearings,

351 S.W.3d 290, 293

 (Tex. 2011); see

also TEX. GOV’T CODE § 552.001(b) (“This chapter shall be liberally construed in favor of

granting a request for information.”).

C.     Prior Constructions of the Act

       Pursuant to their responsibility to “maintain uniformity in the application, operation, and

interpretation” of the Act, TEX. GOV’T CODE § 552.011, Texas Attorneys General have issued

numerous opinions addressing whether private entities—including several chambers of

commerce and similar organizations—were “supported in whole or in part by public funds.”

Respecting the Attorney General’s unique role, courts have given deference to Attorney General

interpretations and applications, most notably the Fifth Circuit in Kneeland v. National

Collegiate Athletic Ass’n,

850 F.2d 224, 228

 (5th Cir. 1988).

       1.      Pre-Kneeland Attorney General Decisions

       In 1973, shortly after the Act became effective, the Attorney General’s very first open

records decision addressed the statutory language we address today and concluded that a private

bank was not “supported in whole or in part by public funds” merely because it received and

held deposits of 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


                                                8
corporation chartered to promote the interests of the Dallas-Fort Worth metropolitan area—was a

governmental body under the Act. Tex. Att’y Gen. ORD-228 (1979). Pursuant to a contract, the

City of Fort Worth paid the corporation $80,000 to “[c]ontinue its current successful programs

and implement such new and innovative programs as will further its corporate objectives and

common City’s interests and activities” over a three-year period.