Opinion
No. 10-11-00060-CV
Opinion delivered and filed August 31, 2011.
Appealed from the 413th District Court, Johnson County, Texas, Trial Court No. C201000638.
Reversed and remanded.
Before Chief Justice GRAY, Justice DAVIS, and Justice SCOGGINS.
MEMORANDUM OPINION
Appellant, Robert Walter Bonner, currently incarcerated in a Tarrant County jail and advancing pro se, challenges the trial court's granting of a plea to the jurisdiction in favor of appellee, the City of Burleson (the "City"). We reverse and remand.
In his pro se appellant's brief, Bonner argues, by one issue, that the trial court abused its discretion in granting summary judgment in favor of the City; however, a review of the record indicates that the trial court granted the City's plea to the jurisdiction, not its motion for summary judgment. Nevertheless, we construe Bonner's issue as challenging the propriety of the trial court's order granting the City's plea to the jurisdiction.
I. BACKGROUND
On November 15, 2010, Bonner filed an original petition for writ of mandamus seeking to compel the City to disclose a Burleson Police Department investigative report under the Texas Public Information Act ("TPIA"). In particular, Bonner wanted portions of the investigative report which contained statements made by Amanda Dawn Dodd (a/k/a Amanda Dodd Bonner), now Bonner's ex-wife, on May 10, 2007. Bonner alleged that Dodd made "untrue, inflammatory, and misleading statements" in an interview with police. Dodd's statements apparently contained allegations of suspected abuse and neglect involving children. Bonner also indicated that, on May 20, 2008, the City informed him that the investigative report he sought "is confidential and [the City] has asked for a decision from the Attorney General about whether the information is within an exception to public disclosure."
Bonner attached to his petition for writ of mandamus a copy of an affidavit executed by Don Adams, a peace officer with the Burleson Police Department. In his affidavit, Adams explained that, pursuant to a search warrant, several of Bonner's computers contained child pornography and were subsequently seized. Adams also noted that he interviewed Dodd and that she "stated during the interview that Bonner had been investigated previously by the Texas Department of Family and Protective Services for a complaint relating to `inappropriately touching' a neighbor[']s female daughter who was under the age of 18."
The City responded to Bonner's petition for writ of mandamus by filing an original answer denying all of Bonner's allegations, a plea to the jurisdiction, and a motion for summary judgment. With regard to its plea to the jurisdiction, the City argued that Bonner did not have standing to bring this action because he had not personally made the TPIA request. Specifically, the City asserted that:
On or about May 8, 2008[,] the City of Burleson received a Public Information Act request via electronic mail from "Texas Brat."
. . . .
Plaintiff admits in his petition that he is not the individual who filed this request. Rather, Plaintiff alleges that the requestor was making the request on his behalf. Nowhere on the face of the request is it indicated that that [sic] the requestor was an agent of any third party, including Plaintiff. Nevertheless, as "Texas Brat" was the requestor for information under the Act, pursuant to Section 552.321, only "Texas Brat" or the Texas Attorney General have standing to bring a writ of mandamus.
Without waiving its jurisdictional arguments, the City also argued that it was not required to provide Bonner with the requested information pursuant to section 552.028(a) of the government code. See TEX. GOV'T CODE ANN. § 552.028(a) (West 2004).
The City stated that section 552.223(a), rather than section 552.028(a), of the government code did not require it to provide Bonner with the requested information. In making this assertion, the City cited to the exact language of section 552.028(a); thus, we presume that the listing of section 552.223(a) was a typographical error. See TEX. GOV'T CODE ANN. § 552.028(a) (West 2004).
Bonner responded by filing a "Traverse to the Return" arguing, among other things, that he was the requestor of the information and that "a plea to the jurisdiction is not the appropriate vehicle for bringing such a challenge." Bonner included a contract with an investigative service, American Bureau of Protective Services ("ABPS"), which was apparently retained by his family and alleged that "Texas Brat" probably was either "Jeff Arnold" or another associate from the ABPS. Bonner further argued that the information sought would assist him with his yet-to-be-filed habeas corpus petition.
Though this case focuses on the inquiry made by "Texas Brat," the record contains three inquiries for the information made by Bonner himself on February 8, 2010, June 17, 2010, and July 30, 2010.
The trial court scheduled hearing on this matter for February 15, 2011. However, the trial court ultimately granted the City's plea to the jurisdiction without a hearing. This appeal ensued.
II. STANDARD OF REVIEW
Whether the trial court had subject-matter jurisdiction over a dispute is a question of law that we review de novo. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); see Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex. 2007). In reviewing the trial court's ruling on a plea to the jurisdiction, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties. Ferrell, 248 S.W.3d at 156.
When a plea to the jurisdiction challenges the pleadings, as is the case here, we determine if the plaintiff has alleged facts that affirmatively demonstrate the trial court's jurisdiction to hear the case, and we construe the pleadings liberally in favor of the plaintiff, while looking to the plaintiff's intent. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009); see Jones v. Tex. Dep't of Criminal Justice — Inst. Div., 318 S.W.3d 398, 403 (Tex. App.-Waco 2010, pet. denied).
The doctrine of standing identifies suits appropriate for judicial determination. Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001). "The general test for standing in Texas requires that there `(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.'" Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993) (quoting Bd. of Water Eng'rs v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722, 724 (1955)). Unless standing is conferred by statute, a plaintiff must demonstrate that he "possesses an interest in a conflict distinct from that of the general public, such that the defendant's actions have caused the plaintiff some particular injury." Williams v. Lara, 52 S.W.3d 171, 178-79 (Tex. 2001). It is the plaintiff's burden to allege facts affirmatively demonstrating the trial court's jurisdiction to hear the case. Tex. Ass'n of Bus., 852 S.W.2d at 445-46. Standing is a question of law subject to de novo review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). As a component of subject-matter jurisdiction, standing is never presumed and cannot be waived. Tex. Ass'n of Bus., 852 S.W.2d at 443-44. We apply the same standard of review to determine standing as we do to determine subject-matter jurisdiction generally. Id. at 446.
III. APPLICABLE LAW
The TPIA entitles persons to obtain complete information about the affairs of government and the official acts of public officials and employees unless otherwise expressly provided by law. See TEX. GOV'T CODE ANN. § 552.001(a) (West 2004). The TPIA is to be construed liberally in favor of granting requests to implement its underlying policy. See id. § 552.001(a), (b). The TPIA provides that:
A requestor or the attorney general may file suit for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body refuses to request an attorney general's decision as provided by Subchapter G or refuses to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure under Subchapter C.
Id. § 552.321(a) (West 2004). A "requestor" is defined as "a person who submits a request to a governmental body for inspection or copies of public information." Id. § 552.003(6) (West 2004).
IV. DISCUSSION
Though Bonner does not recognize that the trial court granted the City's plea to the jurisdiction rather than its motion for summary judgment, he does mention that a plea to the jurisdiction was not the proper vehicle to challenge his standing as a "requestor" under section 552.321(a). The City counters that the determination of whether Bonner was a "requestor" under section 552.321(a) is a jurisdictional issue. The City also argues that, because he did not personally make the TPIA request, Bonner lacked standing, and thus, the trial court did not err in granting the City's plea to the jurisdiction.
In support of his contention, Bonner directs us to the Fourteenth Court of Appeals' decision in City of Houston v. Estrada. No. 14-08-00900-CV, 2009 Tex. App. LEXIS 1970 (Tex. App.-Houston [14th Dist.] Mar. 26, 2009, no pet.) (mem. op.). In Estrada, several lawyers and a paralegal from a law firm, Mayer Brown, made TPIA requests regarding information pertaining to an incarcerated individual, though the individual was not a client of the law firm. Id. at **2-4. The City refused to disclose the requested information, and both the incarcerated individual and Mayer Brown filed a petition for writ of mandamus under section 552.321(a) of the government code. Id. at **4-5. The City filed a plea to the jurisdiction, arguing that the incarcerated individual lacked standing to seek mandamus relief because, among other things, he was not a "requestor" as defined by the statute. Id. at *5. The City filed another plea to the jurisdiction with regard to Mayer Brown. Id. The trial court granted the City's plea with respect to the incarcerated individual, yet it denied the City's plea with regard to Mayer Brown. Id.
It does not appear as if the incarcerated individual in Estrada: (1) challenged the trial court's granting of the City's plea to the jurisdiction; or (2) personally requested information from a governmental entity.
On appeal, the City challenged the trial court's denial of its plea to the jurisdiction with regard to Mayer Brown. Id. at *6. The City argued that the lawyers and paralegal from Mayer Brown were not "requestors" under the TPIA and, therefore, lacked standing to seek mandamus relief. Id. Mayer Brown countered that the lawyers and paralegal making the TPIA requests "were the law firm's agents acting with actual authority when they sent their respective TPIA requests, making the firm a `requestor' with standing under the TPIA to seek mandamus relief." Id. at *7.
In affirming the trial court's denial of the City of Houston's plea, the Estrada court noted the following with regard to the law firm's "asserted status as a `requestor' as defined by the TPIA":
In Concerned Community Involved Development, Inc. v. City of Houston, 209 S.W.3d 666, 673 (Tex. App.-Houston [14th Dist.] 2006, pet. denied), we addressed arguments that an entity seeking mandamus relief under the TPIA (1) failed to allege that it submitted a written request for information under the TPIA; (2) lacked standing because it was not a "requestor" under the TPIA; and (3) could not obtain a writ of mandamus. We held that these issues went to the merits of the case because they involved compliance with the TPIA's statutory requirements and bore on the entity's right to relief. See id. at 673-74 (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000)). Therefore, we held that a motion for summary judgment rather than a plea to the jurisdiction was the proper vehicle by which the city should have challenged the entity's right to mandamus relief under the TPIA. Id. at 674; see also Kazi, 12 S.W.3d at 76-77 (quoting 21 C.J.S. Courts § 16, at 23 (1990)) ("`The right of a plaintiff to maintain suit, while frequently treated as going to the question of jurisdiction, has been said to go in reality to the right of the plaintiff to relief rather than to the jurisdiction of the court to afford it.'").
In the present case, the city filed a plea to the jurisdiction to challenge Mayer Brown's right to seek mandamus relief under the TPIA, just as it did in Concerned Community. Here, as in Concerned Community, the city contends that Mayer Brown lacks standing because it does not qualify as a "requestor" under the TPIA — a contention that goes to the merits of Mayer Brown's right to relief. Because the city's challenge to Mayer Brown's asserted status as a "requestor" under the TPIA goes to the merits of Mayer Brown's right to relief, a plea to the jurisdiction is not the appropriate vehicle for bringing such a challenge. The city's arguments should have been asserted in a motion for summary judgment. See Concerned Cmty., 209 S.W.3d at 673-74; see also Kazi, 12 S.W.3d at 76-77.
Id. at **8-10.
Applying the holding in Estrada to the facts in this case, the wrong procedural vehicle — a plea to the jurisdiction — was used to grant relief to the City. See id. at **8-10. In response to this contention, the City directs us to the supreme court's decision in State v. Lueck, 290 S.W.3d 876 (Tex. 2009). However, we do not find that case to be relevant in this matter. Moreover, in researching this issue, we are unable to find any other case law directly on point. It is telling that the City devotes approximately half of its appellate brief to discuss that the trial court would not have erred in granting summary judgment, though the trial court did not grant summary judgment in this matter. Therefore, in applying the holding in Estrada, which is still good law with respect to the TPIA, we conclude that, although the trial court is correct in finding that Bonner is not entitled to the information sought, the City's motion for summary judgment is the proper procedural vehicle for making this determination rather than the City's plea to the jurisdiction. See Ferrell, 248 S.W.3d at 156; IT-Davy, 74 S.W.3d at 855; see also Estrada, 2009 Tex. App LEXIS 1970, at **8-10. We sustain Bonner's sole issue.
In Lueck, the supreme court considered whether the elements of section 554.002(a) of the government code, otherwise known as the Texas Whistleblower Act, constituted jurisdictional facts that implicated the trial court's subject-matter jurisdiction. State v. Lueck, 290 S.W.3d 876, 881-82 (Tex. 2009). According to the Lueck court, section 554.002(a) prohibits retaliation for reporting violations of the law to the appropriate law enforcement authority. Id. at 880. The supreme court concluded that the elements of section 554.002(a) could be considered jurisdictional facts when it is necessary to resolve whether a plaintiff had alleged a violation under the Texas Whistleblower Act. Id. at 882-84. In arriving at its conclusion, the Lueck court also noted that section 311.034 of the government code provides that "statutory prerequisites to suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity." Id. at 883 (citing TEX. GOV'T CODE ANN. § 311.034 (West Supp. 2010)). The City does not adequately explain how the Lueck decision renders Estrada inapposite with respect to whether this TPIA complaint should have been challenged by a summary judgment motion or a plea to the jurisdiction. Furthermore, we are unable to find any authority holding that one's status as a "requestor" is a statutory prerequisite to bring a mandamus petition pursuant to section 552.321(a) of the government code.
However, we note that it appears as if Bonner is not entitled to the information sought based on two different statutory provisions. See TEX. GOV'T CODE ANN. § 552.028(a) (providing that a governmental unit need not comply with an information request made by an incarcerated individual or an agent of the incarcerated individual, other than the incarcerated individual's attorney); see also TEX. FAM. CODE ANN. § 261.201(a) (West Supp. 2010) (stating that an allegation of suspected abuse or neglect is not subject to public release under chapter 552 of the government code). And while we recognize that a party seeking affirmative relief must have standing to invoke a trial court's subject-matter jurisdiction, see DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008), the supreme court has held that standing, as a component of subject-matter jurisdiction, may be raised by other procedural vehicles, such as a motion for summary judgment. Lueck, 290 S.W.3d at 884; see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
V. CONCLUSION
Having sustained Bonner's sole issue on appeal, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.
On appeal, the City urges us to "modify the trial court's disposition to grant a final summary judgment" pursuant to Texas Rules of Appellate Procedure 43.2(c) and 43.3. See TEX. R. APP. P. 43.2(c), 43.3. However, based on our review of the record, it does not appear that the trial court considered the City's motion for summary judgment. Instead, the trial court granted the City's plea to the jurisdiction, which demonstrates that the trial court did not believe that it had jurisdiction over this matter. The City does not cite to authority indicating that we are duty-bound to grant a motion that was not considered by the trial court. We, therefore, decline to render in this case and, instead, choose to remand the case for proceedings consistent with this opinion.
DISSENTING OPINION
In this proceeding, Robert Walter Bonner, the appellant, is acting as his own counsel. This is not Bonner's first rodeo. He has also appeared in this Court in the following proceedings: 10-09-00120-CR, Bonner v. State (represented by counsel in the appeal of his criminal conviction; issues in his criminal appeal included 20 allegations of ineffective assistance of counsel, some of which were directed to the document sought to be disclosed in this proceeding), 10-10-00011-CV, In the Matter of the Marriage of Bonner (private divorce; Bonner representing himself on appeal), and 10-10-00383-CR, Bonner v. State (appeal of post conviction pro se petition to disclose grand jury testimony; Bonner representing himself on appeal).
THE SUMMARY JUDGMENT ISSUE
In this proceeding, Bonner argues that the trial court erred in granting the City of Burleson's motion for summary judgment. Even after Bonner was notified by the City's brief that the trial court did not grant the City's motion for summary judgment, Bonner stayed with the same issue and did not request to supplement his brief with a new issue or otherwise amend his brief. The only issue presented by the appellant is immaterial because the trial court did not grant the City's motion for summary judgment. I would, therefore, overrule Bonner's issue and affirm the trial court's judgment.
THE PLEA TO THE JURISDICTION
Notwithstanding the briefing deficiency that was drawn to his attention but remains uncorrected, and if I were to give Bonner's trial court pleadings and his appellate briefing a more expansive reading, some would say a broad interpretation, I could not, as the Court does, hold that the issue of standing raised by the City is not properly a jurisdictional issue in this case.
Under the very broadest of interpretations, this is an appeal of a plea to the jurisdiction granted against Bonner. The underlying proceeding is a bit unusual. It is a mandamus proceeding brought under a specific provision of the Government Code. Bonner alleges the City of Burleson has failed to comply with the Texas Public Information Act. See TEX. GOV'T CODE ANN. Ch. 552 (West 2004 and Supp. 2010).
To attorneys and judges who have not dealt with this type proceeding before, it may be helpful to discuss the nature of the proceeding in the trial court and its differences from the typical mandamus proceeding that an appeals court deals with. This is an appeal of the mandamus action which was initiated in the trial court. An action for a writ of mandamus initiated in the trial court is a civil action subject to appeal as any other civil suit. See Anderson v. City of Seven Points, 806 S.W.2d 791, 792 n. 1 (Tex. 1991); Simmons v. Kuzmich, 166 S.W.3d 342, 345 (Tex. App.-Fort Worth 2005, no pet.); Harris v. Jones, 8 S.W.3d 383, 385 (Tex. App.-El Paso 1999, no pet.); Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 473 (Tex. App.-Dallas 1999, no pet.); Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.-Austin 1997, no pet.).
If relevant to the appeal, we would review the trial court's findings of fact and conclusions of law in accordance with the standards generally applicable to a trial court's findings and conclusions. See Anderson, 806 S.W.2d at 794 n. 2; Simmons, 166 S.W.3d at 345-346; Dallas Area Rapid Transit, 4 S.W.3d at 473; Tex. Legal Found., 958 S.W.2d at 481. That is, we review findings of fact for legal and factual evidentiary support, and we review conclusions of law de novo. Simmons, 166 S.W.3d at 346; Dallas Area Rapid Transit, 4 S.W.3d at 473; Tex. Legal Found., 958 S.W.2d at 481. We do not apply the abuse of discretion standard applicable to mandamus actions that originate in our appellate courts. Simmons, 166 S.W.3d at 346; Harris, 8 S.W.3d at 385.
Thus, these mandamus proceedings under the Texas Public Information Act are basically like regular lawsuits but are purely creatures of the statute that authorizes the suit and only to that extent is sovereign immunity waived. The statute is designed to compel compliance with a specific request for information.
In this case, the primary request for public information that is being addressed is a request submitted by email on May 5, 2008 from a sender identified only as "Texas Brat." I will address that specific request and the standing issue first. In discussing this issue, I will first ignore Bonner's allegation that Texas Brat was a person hired by his family as a private investigator and was thus his agent in making the request. Only after addressing the Texas Brat in isolation will I discuss the slight modification of the analysis if Texas Brat is Bonner's agent. I will then address the jurisdictional issue of the three other Texas Public Information Act requests Bonner made.
Texas Brat
There was no way for the City to have known that Texas Brat was an agent of Bonner, as he alleged in his suit for writ of mandamus, when the request was made by Texas Brat. As discussed above, I will address the "agent of Bonner" aspect of the request in a moment. But first I must directly address the issue of whether Bonner has standing to bring a mandamus petition to compel the City to respond to a request made by Texas Brat. Texas Brat, as the person that made the request, i.e. the "requestor," is the only person who would have standing to complain about the City's alleged failure to comply with the Texas Public Information Act. See TEX. GOV'T CODE ANN. §§ 552.003(6) and 552.321(a) (West 2004). Texas Brat is the only "requestor" that can assert that he/she made a request and that the City failed to comply with the request. Id.
In this regard, there are two important comparisons to be made to more traditional litigation. First, it is only an aggrieved or injured party that can bring a lawsuit. In regard to the May 5, 2008 request from Texas Brat, only Texas Brat has a complaint about the City's alleged failure to comply with the Act. Thus, only Texas Brat is considered the "requestor" for purposes of the statute. Second, the process of first making a request for the disclosure of information is the equivalent of an administrative remedy that must be exhausted before the person seeking the information may proceed to file the mandamus petition. See Subaru of Am. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002) ("Typically, if an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency's action. Until then, the trial court lacks subject matter jurisdiction and must dismiss the claims within the agency's exclusive jurisdiction." (citation omitted)).
And it is critical to establish the identity of the requestor because compliance with other provisions of the Act requires communication with the requestor. Specifically, when the governmental body requests an Attorney General opinion, the governmental body must provide to the "requestor" a written statement and a copy of the communication to the Attorney General. TEX. GOV'T CODE ANN. § 552.301(d)(1)and (2) (West Supp. 2010). Further, when the Attorney General renders its opinion, a copy must be provided to the "requestor." Id. § 552.306(b). It is not enough that somebody in the universe made the request to then authorize another individual to bring the mandamus petition; it is necessary that a person must have made the request before that person is entitled to bring the petition. Without this requirement and implicit limitation of standing to the "requestor," how would the City or the Attorney General be able to otherwise comply with their communication requirements under the statute?
Further, it is also fundamentally necessary to establish the identity of the requestor, not only for communication purposes, but also because the statute authorizes only the requestor or the Attorney General to pursue the mandamus suit and then, only if an Attorney General opinion is not requested. Id. § 552.321(a) (West 2004). So, as noted above, there is no way for the governmental body or the Attorney General to comply with the other duties of the Texas Public Information Act by communicating with anyone other than the requestor. And the provision that Bonner relies upon to bring the mandamus suit for the City's alleged failure to provide access to the information authorizes the proceeding only "if the governmental body refuses to request an attorney general's decision. . . ." Id.
The fundamental problem that strict recognition of the standing requirement solves is, in fact, presented in this proceeding. Both the governmental body and the Attorney General complied with their Texas Public Information Act duties by communicating to the requestor as identified and made known to them, Texas Brat, not to Bonner. Thus, when attempting to bring this proceeding, Bonner, a mere interloper at that point, was unaware that the Attorney General opinion that had been requested had actually issued and that, therefore, the mandamus proceeding was not authorized by the statute.
The Attorney General opinion determined the Burleson Police Department report sought by Bonner is protected by TEX. GOV'T CODE ANN. § 552.101 (West 2004) under TEX. FAM. CODE ANN. § 261.201(a) (West Supp. 2010). The protection of the document under that statue has been determined to be constitutional. See Doe v. Tarrant County Dist. Attorney's Office, 269 S.W.3d 147 (Tex. App.-Fort Worth 2008, no pet.). Bonner is not deprived of the document due to his status as an inmate. Even before the City and the Attorney General knew Texas Brat may have been an agent for an inmate, they determined the document sought was exempt from disclosure.
Thus, based on the forgoing, because the May 5, 2008 request was made by Texas Brat, Texas Brat is the requestor and is the only person, other than the Attorney General, that could have standing to bring the mandamus. Further, even as to Texas Brat, the trial court does not have jurisdiction of the suit because the mandamus proceeding is only authorized if the governmental entity does not request an Attorney General opinion. In the facts as alleged by Bonner, he recognizes that a request for an Attorney General opinion was made. Therefore, he affirmatively pled facts which conclusively negate jurisdiction.
Texas Brat — Bonner's Agent
We next must take up the issue that Bonner asserts he has standing as the requestor because, based upon his allegations which we must take as true in an appeal from a plea to the jurisdiction, Texas Brat is his agent (although not his attorney). Based on this allegation, as the principal, Bonner is bound by the actions of the City of Burleson in response to Texas Brat's request. As noted above, the City requested an Attorney General opinion in response to the request of Texas Brat/Bonner. The City having requested an Attorney General opinion, the requestor, Texas Brat/Bonner, has no authority under section 552.321 to bring a suit for writ of mandamus. Thus, the trial court did not err in dismissing the suit for writ of mandamus brought by Texas Brat/Bonner.
Estrada Distinguished
The Court and Texas Brat/Bonner rely on Estrada for the proposition that a plea to the jurisdiction is not the proper procedural vehicle to challenge standing as a requestor. City of Houston v. Estrada, No. 14-08-00900-CV, 2009 Tex. App. LEXIS 1970 (Tex. App.-Houston [14th Dist.] March 26, 2009, no pet.) (mem. op.). I respectfully disagree. In Estrada there was the allegation that the individuals signing the request were employees of the law firm identified in the mandamus proceeding. But all the requests at issue in the Estrada appeal were submitted on the law firm's letterhead. The petitioner asserted that the signatories on the letterhead were agents for the law firm, and thus, the law firm was the requestor. To the extent of the agency allegations on appeal and whether that makes the law firm the requestor, the reader must remember that the requests were made on the law firm letter head; and thus, the City of Houston was not faced with the same issue that the City of Burleson faces in this proceeding. The agency relationship was clearly implied in or by the form of the request. In this proceeding, however, the City of Burleson had no way of knowing the agency relationship between Texas Brat and Bonner. Additionally, and much more important for the distinction from Estrada, Burleson requested an Attorney General opinion defeating the ability of Texas Brat or its principal, Bonner, to use the procedural vehicle of a suit for a writ of mandamus. Further, to the extent that Estrada discusses the "status" as a requestor, it appears to be more of a question of capacity than standing which is a rather common area of confusion. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-849 (Tex. 2005) (discussing the difference between standing and capacity and discussing the confusion between the two concepts).
Inmate Request for Public Information — Three Requests
I now turn my attention to whether a suit for writ of mandamus is available to an inmate. I believe that any fair reading of the statute would be that it is not.
Bonner's petition identifies three other requests for information he submitted at various times to various persons within the City. In each of these, on the face of the request, he identified himself as being incarcerated. And it is undisputed that, at all times relevant to the requests for information and during the course of this proceeding, Bonner has been, is, and will remain for some time in the future, incarcerated. See Bonner v. State, No. 10-09-00120-CR, 2010 Tex. App. LEXIS 7440 (Tex. App.-Waco Sept. 8, 2010, pet. ref'd) (mem. op.). Because Bonner is an inmate in a correctional facility, governmental bodies, including the City of Burleson, need not accept or comply with a request for information from Bonner or an agent of Bonner other than his attorney. TEX. GOV'T CODE ANN. § 552.028(a) and (c) (West 2004). The issue thus presented in the Court's expanded construction of this proceeding is whether a trial court has jurisdiction of a suit for writ of mandamus under section 553.321 brought by an incarcerated person.
This requires us to look to the statutory scheme as a whole and determine if the waiver of sovereign immunity provided for by section 552.321 is limited by another provision of the same Act. It must be remembered that we are construing a waiver of sovereign immunity and such waiver must be clear and unambiguous. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). A mandamus proceeding, even in this context, is to compel the governmental body to comply with a ministerial act, the disclosure of public information. But not every request must be acted upon by the governmental body. Specifically, as noted above, the governmental body is not required to accept or comply with a request for information from an incarcerated person. To allow an incarcerated person to present a request for information and then to bring a suit for a writ of mandamus against the governmental body when the governmental body has no duty or obligation to accept or comply with the request in the first instance would be an absurd result. I believe that the proper construction of the Act as a whole is that section 552.028 is a limitation on the waiver of sovereign immunity otherwise provided by section 552.321. If it is construed otherwise, it would require the governmental body to respond to a suit for failing to respond to a request that it had a statutory right to ignore.
At the very least, it would mean there is no realistic chance of success in such a proceeding and it should be dismissed as frivolous. TEX. CIV. PRAC. REM. CODE ANN. § 14.003(a)(2) (West 2002); Hickman v. Moya, 976 S.W.2d 360 (Tex. App.-Waco 1998, pet. denied). This particular proceeding could also have been dismissed because Bonner failed to file the affidavit relating to previous filings. TEX. CIV. PRAC. REM. CODE ANN. § 14.004 (West 2002).
CONCLUSION
Jurisdiction is never presumed. See Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443-444 (Tex. 1993). We are to affirm a trial court's judgment if it is correct on any theory of law supported by the case. See In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984). Because Bonner only asserts that the trial court erred in granting the City's summary judgment, when the trial court did not grant the City's summary judgment, I would overrule his sole issue and affirm the trial court. If I were to proceed to the issues as framed and addressed by the Court regarding the propriety of the trial court's dismissal for lack of jurisdiction, I would also affirm the trial court's judgment. Accordingly, I respectfully dissent to the reversal of the trial court's judgment and the remand of this proceeding.