Opinion
NO. 03-15-00631-CV
06-23-2016
Melissa Gates, Appellant v. Texas Department of Family and Protective Services and Commissioner Henry Whitman, Jr., Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-13-002324, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDINGMEMORANDUM OPINION
Melissa Gates appeals the trial court's order granting the amended plea to the jurisdiction of the Texas Department of Family and Protective Services and its Commissioner as to her claims brought under the Texas Public Information Act (PIA) and the Uniform Declaratory Judgments Act (UDJA).See Tex. Gov't Code § 552.321(a) (authorizing suit for writ of mandamus to compel governmental body to make public information available); Tex. Civ. Prac. & Rem. Code §§ 37.001-.011. For the reasons that follow, we affirm the trial court's order.
At the time Gates filed this appeal, John Specia was serving as the Department's Commissioner and was one of the named appellees. Pursuant to Rule 7.2(a), Henry Whitman, Jr., as his successor, has been designated in his place. See Tex. R. App. P. 7.2(a).
BACKGROUND
On November 7, 2012, Gates requested copies of documents and other information from the Department about investigations in 2011 by Child Protective Services (CPS) and Adult Protective Services (APS) concerning her family. See Tex. Fam. Code § 261.201(g) (authorizing Department to provide to parent of child information that would otherwise be confidential and not subject to disclosure under PIA); Tex. Hum. Res. Code § 48.101(d-1) (authorizing executive commissioner to adopt rules providing for person's legal guardian to receive information that would otherwise be confidential and not subject to disclosure under PIA). In response, the Department requested an opinion from the Office of the Attorney General (OAG) and sought to withhold documents that the Department contended were attorney-client communications pursuant to section 552.107(1) of the PIA. See Tex. Gov't Code § 552.107(1) (excepting information from disclosure that "attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence or the Texas Disciplinary Rules of Professional Conduct").
The OAG issued a letter ruling on January 17, 2013, concluding that the Department must release the documents that the Department contended were attorney-client communications because the Department had not complied with the procedural requirements mandated by section 552.301(e) of the PIA. See Tex. Att'y Gen. OR2013-01014; Tex. Gov't Code §§ 552.301(e) (requiring governmental body to submit specified information to attorney general "not later than the 15th business day after the date of receiving the written request"), .302 (requiring public disclosure of requested information unless there is "compelling reason to withhold the information" when governmental body fails to comply with section 552.301).
After the letter ruling, Gates and her husband contacted the Department about the projected date of the records' release, but the Department did not release the withheld documents. In March and April 2013, the Department advised Gates and her husband that the Department would not be releasing any additional documents pursuant to Gates's request because of a previous letter ruling by the OAG. In that letter ruling, the OAG addressed a prior open records request by Gates's husband and found that the disputed documents could be withheld pursuant to section 552.107(1) of the PIA. See Tex Att'y Gen. OR2012-00882; Tex. Gov't Code § 552.107(1).
In July 2013, Gates filed a petition for declaratory relief and writ of mandamus to compel the Department to produce the disputed information. She sought declarations that the Department had violated the PIA and that appellees "in failing to file a lawsuit within [the] prescribed time contesting the opinion of the [OAG], waived their right to raise any other exceptions to requirements to disclose," and she requested attorney's fees and costs pursuant to the PIA and the UDJA. See Tex. Gov't Code § 552.323 (generally requiring court to "assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails" in action brought under section 552.321); Tex. Civ. Prac. & Rem. Code § 37.009 (allowing court to "award costs and reasonable and necessary attorney's fees as are equitable and just"). In August and November 2014, the Department provided the previously withheld documents to Gates.
Gates amended her petition in April 2015 and supplemented her amended petition in May 2015. She cited section 552.3215(b) of the PIA and section 37.003 of the UDJA as authority for her declaratory claims and continued to seek the recovery of her costs and attorney's fees. She alleged that the "wrongfully withheld" documents "could have been used in pending registry litigation to establish a violation of constitutional liberty interest," that they "were evidence that could have been used to help establish the violation of the Gateses' substantive rights to direct the education and moral training of [their special needs adult daughter]," and that they were "evidence useful to help try and protect Plaintiff's familial integrity." She also alleged that the Department "withheld timely production of the [PIA] documents in order to gain a tactical advantage in [the] pending registry case" between her husband and the Department. In addition to seeking declarations regarding the alleged past violations of the PIA, Gates sought (i) declarations that the "actions of [appellees] regarding the delay in providing documents according to the [PIA] interfered with her legal rights or privileges" and that appellees' "wrongful delay in producing documents to gain a tactical advantage in other litigation was a prohibited practice"; (ii) an injunction that appellees "be affirmatively enjoined to comply with the [PIA] in a timely manner in the future"; and (iii) "a writ of mandamus ordering . . . [appellees] to comply with the [PIA] in a timely manner in the future."
The "registry" case between Gates's husband and the Department is currently pending before this Court and has been assigned cause number 03-13-00369-CV. See Tex. Fam. Code § 261.002(a) (requiring Department to "establish and maintain a central registry"); 40 Tex. Admin. Code § 700.104 (Dep't of Family & Protective Servs., Child Abuse and Neglect Central Registry).
Appellees filed a plea to the jurisdiction and an amended plea. In their amended plea, they sought dismissal because the Department "voluntarily produced to [Gates] the contested attorney-client communications, in their entirety, which had been the focus of this suit." They argued that: (i) Gates's UDJA claim was "merely redundant of or incidental to" her PIA claim and that her PIA claim was moot, (ii) the trial court did not have jurisdiction "to grant declaratory relief as to alleged violations that occurred in the past for already-fulfilled requests which have thus been rendered moot," and (iii) section 552.3215 of the PIA did not provide a jurisdictional basis for Gates's claims because it authorizes the attorney general or local prosecutor, not a private party, to bring a suit for declaratory or injunctive relief in the name of the state against a governmental body that violates the PIA. See Tex. Gov't Code § 552.3215. Appellees also submitted evidence to support their plea, including an affidavit from an assistant general counsel at the Department who averred about the Department's process in locating responsive documents to Gates's request and the steps that he took to ensure that the entirety of those documents were produced. The assistant general counsel averred: "During the pendency of this lawsuit, [the Department] voluntarily produced to Gates the attorney-client communications, in their entirety, which had been previously withheld and subject to this suit."
Gates filed a response to appellees' amended plea to the jurisdiction and a supplement to her response, asserting that she was entitled to attorney's fees and that her claims were not moot or, alternatively, that the public interest, capable-of-repetition-yet-evading-review, and/or collateral consequences exceptions to the mootness doctrine applied. Appellees then filed a reply to the response, arguing that Gates was not a "prevailing party" to entitle her to attorney's fees, see Tex. Gov't Code § 552.323 (requiring award of costs and attorney's fees to plaintiff who "substantially prevails" in suit for mandamus relief under section 552.321), and that the exceptions to the mootness doctrine did not apply.
Following a hearing, the trial court granted appellees' amended plea to the jurisdiction. Gates filed a motion for new trial, which was denied. This appeal followed.
DISCUSSION
Gates raises two issues on appeal challenging the trial court's order granting appellees' amended plea to the jurisdiction. She argues that (i) she cannot be denied "standing to redress/remedy when governmental actors intentionally delay in complying with [PIA] in order to gain a tactical advantage and/or perceived tactical advantage in separate and concurring litigation," and (ii) the trial court erred in concluding that it did not have subject matter jurisdiction because a live controversy exists as to attorney's fees and her claims are not moot or, alternatively, an exception to the mootness doctrine applies.
Standard of Review
We review a ruling on a plea questioning the trial court's subject matter jurisdiction de novo. See Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We focus first on the plaintiff's petition to determine whether the pleaded facts affirmatively demonstrate that subject matter jurisdiction exists. Id. We construe the pleadings liberally in favor of the plaintiff. Id. If the plaintiff has not affirmatively pleaded facts to support jurisdiction or to negate jurisdiction, the matter is one of pleading sufficiency, and the court should provide the plaintiff with the opportunity to amend its pleadings to cure jurisdictional defects. Id. at 226-27. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at 227. If a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Id. at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
Delay in Releasing Documents
In her first issue, Gates argues that she cannot be denied "standing to redress/remedy" her claims when appellees intentionally delayed complying with the PIA to gain "a tactical advantage" in the separate and concurring registry case. She contends that the delay in releasing the documents interfered with and violated her legal right to due process and due course of law and fundamental fairness in the registry case. She, however, is not a party in the registry case, which is between her husband and the Department. See Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001) ("To meet the standing requirements of Article III, '[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.'" (quoting Raines v. Byrd, 521 U.S. 811, 818-19 (1997)); Save Our Springs All., Inc. v. City of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App.—Austin 2010, pet. denied) (noting that standing requires "'injury in fact,' an invasion of a legally protected interest that is concrete and particularized, and that is actual or imminent rather than conjectural or hypothetical" (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992))).
Further, "it is the Legislature's sole province to waive or abrogate sovereign immunity," Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 409 (Tex. 1997), and "Legislative consent to sue the State must be expressed in 'clear and unambiguous language.'" Texas Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002) (quoting Tex. Gov't Code § 311.034); see Texas Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 620-21 (Tex. 2011) (per curiam) (noting that doctrine of sovereign immunity deprives the trial court of subject matter jurisdiction); Tooke v. City of Mexia, 197 S.W.3d 325, 331-32 (Tex. 2006) (observing that "important purpose" of sovereign immunity "is pragmatic: to shield the public from the costs and consequences of improvident actions of their governments"). This same immunity generally extends to state officials who are sued in their official capacity, as is the case here with the Commissioner. See City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009).
Although section 552.321 of the PIA waives sovereign immunity and allows suit for a writ of mandamus against a governmental body, the substantive statutory relief is limited to the disclosure of information. See Tex. Gov't Code § 552.321(a) (authorizing court to issue writ of mandamus to compel governmental body to make information available to requestor); Thomas v. Cornyn, 71 S.W.3d 473, 482 (Tex. App.—Austin 2002, no pet.) (comparing different types of PIA claim but noting that issue as to different types of PIA claims is "whether the information has been shown to be excepted from disclosure"). The legislature has not addressed or provided a waiver of sovereign immunity as to a claim that is based on a governmental body's delay or its motives for delaying the release of information that is subject to disclosure under the PIA. See Tex. Gov't Code § 311.034 ("[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language."); see also MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669-70 (Tex. 2009) (noting that whether "'policy would be wise is for the Legislature, not the courts, to decide'" (quoting Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 896 (Tex. 1962))).
We note that, by voluntarily producing documents during the pendency of a case, a governmental entity subject to an open records request necessarily gives up its right to further judicial review of the substantive issue—whether the documents are subject to disclosure under the PIA. And an officer for public information is subject to potential criminal charges for failure or refusal to provide information without complying with the PIA. See Tex. Gov't Code § 552.353 (making failure or refusal to provide access to public information criminal offense).
Here, the uncontroverted jurisdictional evidence established that the Department voluntarily released the requested information to Gates. See City of El Paso v. Abbott, 444 S.W.3d 315, 324-27 (Tex. App.—Austin 2014, pet. denied) (concluding that uncontroverted affidavits about City's process and release of documents responsive to request conclusively established that City was not refusing to supply public information and, thus, that trial court lacked jurisdiction over PIA mandamus claim). Therefore, regardless of the Department's motives for the delay in releasing the documents, Gates received all the substantive relief that she was entitled to under the PIA. See Tex. Gov't Code § 552.321(a); Abbott, 444 S.W.3d at 324-27; Thomas, 71 S.W.3d at 482. On this basis, we overrule Gates's first issue.
Mootness Doctrine
In her second issue, Gates argues that the trial court erred in concluding that it does not have subject matter jurisdiction based on the mootness doctrine. She argues that a "live controversy" exists as to attorney's fees and that her claims are not moot. She also argues, alternatively, that an exception to the mootness doctrine applies.
"The mootness doctrine dictates that courts avoid rendering advisory opinions by only deciding cases that present a 'live' controversy at the time of the decision." Texas Health Care Info. Council v. Seton Health Plan Inc., 94 S.W.3d 841, 846 (Tex. App.—Austin 2002, pet. denied). "If a controversy ceases to exist—'the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome'—the case becomes moot." Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (citation omitted); see In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (noting case becomes moot if controversy ceases to exist between parties "at any stage of the legal proceedings"). If a case becomes moot, the parties lose standing to maintain their claims. Lara, 52 S.W.3d at 184. A court has no jurisdiction over a claim made by a plaintiff who lacks standing and, as such, must dismiss it. Heckman v. Williamson Cty., 369 S.W.3d 137, 150-51 (Tex. 2012).
PIA claims
As to Gates's PIA claims, we are guided by this Court's opinions in Abbott, 444 S.W.3d 315, and Texas State Board of Veterinary Medical Examiners v. Giggleman, 408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.). Similar to the Department's release of information after Gates filed suit, the governmental entities in those cases released information during the pendency of suits brought under the PIA and, in both cases, we concluded that the trial court did not have jurisdiction. In Abbott, we concluded that the City's evidence conclusively established that it was willing to supply disputed information and, thus, that the trial court did not have jurisdiction over a PIA mandamus claim based on principles of sovereign immunity. See 444 S.W.3d at 324-25. In Giggleman, we concluded that the requestor's "mandamus claim was rendered moot before final judgment when the Board had eventually produced the disputed exhibits to him, obviating any justiciable controversy regarding his entitlement to the writ" and dismissed his claims. See 408 S.W.3d at 704, 709.
Gates argues that Abbott and Giggleman are factually distinguishable "because the governmental entities operated within the legal parameters of the [PIA]" in contrast with the Department's "deliberate uncooperative conduct, driven by Appellees' other litigation concerns." Gates focuses on the fact that the City in Abbott timely filed suit for judicial review under section 552.324 after the OAG determined that the City should release the disputed information, see 444 S.W.3d at 318, and the fact that the OAG determined that the disputed information did not have to be released in Giggleman, see 408 S.W.3d at 699. But, as we previously stated, the PIA does not provide a waiver of sovereign immunity as to a claim that is based on a governmental body's motives or delay in refusing to release information. Because the Department's release of the requested information obviated any justiciable controversy regarding Gates's entitlement to mandamus relief under the PIA, we conclude that her PIA claims were rendered moot. See id. at 704, 709; see also Hudson v. Paxton, No. 03-13-00368-CV, 2015 Tex. App. LEXIS 1704, at *4, 14 (Tex. App.—Austin Feb. 20, 2015, pet. denied) (mem. op.) (affirming trial court's dismissal of PIA claims when governmental entity voluntarily produced requested information while case pending).
To the extent Gates cites section 552.3215 of the PIA to support the trial court's jurisdiction over her PIA claim, appellees argue that section does not provide a jurisdictional basis for actions against governmental bodies by private litigants. See Tex. Gov't Code § 552.3215 (establishing procedure for PIA complainants to file complaint with district or county attorney, who then determines whether violation has occurred and whether to pursue matter, and authorizing district or county attorney to file action for declaratory or injunctive relief in the name of state when governmental body does not cure violation after notification); see also Kessling v. Friendswood Indep. Sch. Dist., 302 S.W.3d 373, 383 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) ("In effect, section 552.3215 gives a complainant an avenue for seeking redress which does not require the complainant to incur the expense of filing a lawsuit on his or her own behalf: a lawsuit undertaken by, and in the name of, the state."). We, however, do not further address this argument because the trial court would not have jurisdiction over a claim brought under section 552.3215 for the same reason that we have concluded that Gates's PIA mandamus claim is moot—the Department's release of the requested information.
UDJA claims
We also conclude that the trial court did not have jurisdiction over Gates's UDJA claims. "The UDJA does not create or augment a trial court's subject-matter jurisdiction—it merely provides a remedy where subject-matter jurisdiction already exists." Texas Logos, LP v. Texas Dep't of Transp., 241 S.W.3d 105, 114 (Tex. App.—Austin 2007, no pet.) (citing section 37.003(a) of UDJA)). "That is, a UDJA action will lie within the subject-matter jurisdiction of the district courts when there is (1) a justiciable controversy as to the rights and status of parties actually before the court for adjudication; and (2) that will be actually resolved by the declaration sought." See id. (citing Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64 (Tex. 2004)). In her pleadings, Gates sought declarations that: (i) appellees violated the PIA by failing to forward the requested documents to her, (ii) they "waived their right to raise any other exceptions to requirements to disclose," (iii) "the actions of [appellees] regarding the delay in providing documents according to the [PIA] interfered with her legal rights or privileges," and (iv) "[appellees'] wrongful delay in producing documents to gain a tactical advantage in other litigation was a prohibited practice." Because the Department has already released the documents, however, no justiciable controversy between appellees and Gates would actually be resolved by her requested declarations. See id.
Gates also sought to enjoin appellees "to comply with the [PIA] in a timely manner in the future." See Tex. Civ. Prac. & Rem. Code § 37.011 (authorizing supplemental relief); Howell v. Texas Workers' Comp. Comm'n, 143 S.W.3d 416, 433 (Tex. App.—Austin 2004, pet. denied) (noting that ancillary injunction may be obtained when the evidence establishes that defendant will not comply with declaratory judgment). But injunctive relief under the UDJA was not available to Gates without a declaratory judgment. See State v. Anderson Courier Serv., 222 S.W.3d 62, 66 (Tex. App.—Austin 2005, pet. denied) (noting that relief granted under section 37.011 of UDJA must be ancillary to judgment). Further, Gates's requests for relief that were based on the possibility of future violations or delay would have no legal effect on an actual controversy before the court and would be purely advisory. See Texas Logos, 241 S.W.3d at 114; Texas Health Care Info. Council, 94 S.W.3d at 846.
Exceptions to Mootness Doctrine
Gates, alternatively, argues that the capable-of-repetition-but-evading-review, public interest, and collateral consequences exceptions to the mootness doctrine apply.
A common element of the public interest and the capable-of-repetition-but-evading-review exceptions is that the complained-of action be capable of repetition but yet not effectively reviewable. See Texas A&M Univ. - Kingsville v. Yarbrough, 347 S.W.3d 289, 290 (Tex. 2011) ("'Capable of repetition yet evading review' is a rare exception to the mootness doctrine" that only applies "when 'the challenged act is of such short duration that the appellant cannot obtain review before the issue becomes moot.'" (citation omitted)); Federal Deposit Ins. Corp. v. Nueces Cty., 886 S.W.2d 766, 767 (Tex. 1994) (stating that "the public interest exception permits judicial review of questions of considerable public importance if the nature of the action makes it capable of repetition and yet prevents effective judicial review"). An issue does not evade review if appellate courts have addressed the issue on the merits. Meeker v. Tarrant Cty. Coll. Dist., 317 S.W.3d 754, 761-62 (Tex. App.—Fort Worth 2010, pet. denied); see Federal Deposit Ins. Corp., 886 S.W.2d at 767 (concluding that case did not meet "suggested requirements" of public interest exception because "Fifth Circuit Court of Appeals addressed [the] precise issue in two recent decisions").
Although courts of appeals have recognized the public interest exception, the Texas Supreme Court has not decided its viability. Federal Deposit Ins. Corp. v. Nueces Cty., 886 S.W.2d 766, 767 (Tex. 1994).
Here, the substantive issue was whether documents were subject to disclosure under the PIA, an issue that has been addressed on the merits numerous times by Texas courts. See, e.g., Texas Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 113-14, 121 (Tex. 2011) (reaching merits of whether to uphold writ of mandamus compelling production of documents under PIA); Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 291 (Tex. 2011) (reaching merits of whether information must be disclosed under PIA); City of Garland v. Dallas Morning News, 22 S.W.3d 351, 368 (Tex. 2000) (reaching merits of whether information exempt from disclosure under PIA). Thus, neither of these two exceptions applies here.
We also conclude that the collateral consequences exception does not apply here. That exception "is invoked only under narrow circumstances when vacating the underlying judgment will not cure the adverse consequences suffered by the party seeking to appeal that judgment." Marshall v. Housing Auth. of San Antonio, 198 S.W.3d 782, 789 (Tex. 2006). "Such narrow circumstances exist when, as a result of the judgment's entry, (1) concrete disadvantages or disabilities have in fact occurred, are imminently threatened to occur, or are imposed as a matter of law; and (2) the concrete disadvantages and disabilities will persist even after the judgment is vacated." Id. Gates raises the "consequence" of having one's name in the Department's central registry, but this appeal does not concern the central registry but the release of documents under the PIA, and the trial court's order granting appellees' amended plea to the jurisdiction will not be vacated as a result of this appeal.
For these reasons, we conclude that Gates's PIA mandamus and UDJA claims are moot and that no exception to the mootness doctrine applies as to those claims. Thus, the trial court correctly concluded that it did not have subject matter jurisdiction over those claims after the Department voluntarily released the disputed documents to Gates. See Heckman, 369 S.W.3d at 150-51.
Attorney's Fees
Having determined that the trial court did not have jurisdiction over Gates's PIA mandamus and UDJA claims based on the mootness doctrine, we turn to her accompanying claim for attorney's fees and costs. Relying on her pleading for attorney's fees under the UDJA, Gates argues that a "live controversy exists as to whether or not [she] has a legally cognizable interest in recovering her attorney's fees."
Section 37.009 of the UDJA authorizes the "award of costs and reasonable and necessary attorney's fees as are equitable and just" in "any proceeding under this chapter." Tex. Civ. Prac. & Rem. Code § 37.009. There also are some instances under the UDJA when a pending attorney's fee claim may "remain live and justiciable even while the predicate claims for relief have been rendered moot." Giggleman, 408 S.W.3d at 705. But "a party cannot use the [UDJA] as a vehicle to otherwise obtain impermissible attorney's fees." MBM Fin. Corp., 292 S.W.3d at 669; see Heinrich, 284 S.W.3d at 370-01 (noting that UDJA "does not enlarge a trial court's jurisdiction, and a litigant's request for declaratory relief does not alter a suit's underlying nature"). "Furthermore, an award of attorney's fees under the [UDJA] is unavailable if the claim for declaratory relief is merely incidental to other claims for relief." Jackson, 351 S.W.3d at 301.
Gates's UDJA claims—seeking declarations about appellees' violations of the PIA—are "merely incidental" to her "central theory of relief which arises squarely under the [PIA]." See id. (holding that requestor could not recover attorney's fees under UDJA because claim for attorney's fees was incidental to "central theory of relief" under PIA and noting that allowing PIA requestor to recover attorney's fees under UDJA when requestor could not meet the requirements for recovery of attorney's fees under PIA "would frustrate limits established" by the PIA). We turn then to determine if Gates can meet the requirements for recovery of attorney's fees under the PIA.
As previously stated, section 552.321 of the PIA waives sovereign immunity and allows suit for a writ of mandamus against a governmental body, and section 552.323(a) generally requires the trial court to access reasonable attorney's fees and costs to "a plaintiff who substantially prevails" in a suit for writ of mandamus under the PIA. See Tex. Gov't Code §§ 552.321, .323(a). However, "[a]s this Court has previously observed, PIA 552.323(a)'s 'substantially prevail' requirement incorporates the concept of a 'prevailing party.'" Giggleman, 408 S.W.3d at 703 (citation omitted); see Dallas Morning News, Inc. v. City of Arlington, No. 03-10-00192-CV, 2011 Tex. App. LEXIS 439, at *8-10 (Tex. App.—Austin Jan. 21, 2011, no pet.) (mem. op.) (discussing requirement that plaintiff "substantially prevail" in context of PIA). "This requires 'an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement.'" Giggleman, 408 S.W.3d at 703 (citation omitted). "Likewise, a plaintiff does not become a 'prevailing party' merely because the defendant voluntarily changes its conduct in a manner mooting the controversy." Id. at 704 (citing Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598, 605-06 (2001)).
In contrast, the attorney's fee provision under the Freedom of Information Act (FOIA) defines "substantially prevailed" to include when "a complainant has obtained relief through . . . a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial." 5 U.S.C. § 552(a)(4)(E)(ii); see Hudson v. Paxton, No. 03-13-00368-CV, 2015 Tex. App. LEXIS 1704, at *7 n.3, 12 (Tex. App.—Austin Feb. 20, 2015, pet. denied) (mem. op.) (comparing and contrasting FOIA and PIA definition of "substantially prevailed"). --------
Here, the jurisdictional evidence conclusively established that the Department voluntarily released the information, and the record does not reflect an enforceable judgment against the Department or a consent decree or settlement, only the trial court's order granting appellees' amended plea to the jurisdiction. Thus, the record establishes that Gates could not satisfy the "substantially prevail" requirement in section 552.323(a), and her accompanying claim for attorney's fees under the PIA "was likewise rendered moot." See Giggleman, 408 S.W.3d at 706 (concluding that accompanying claim for attorney's fees under PIA "was likewise rendered moot" when PIA mandamus claim rendered moot before final judgment and noting that remedy for "perceived injustices"—"enabling governmental bodies to thwart claims for attorney's fees incurred through protracted litigation" by providing relief originally sought late in case—"would lie in the Legislature rather than the Judicial Branch"); see also Brazee v. City of Spur, No. 07-12-00405-CV, 2014 WL 2810339, at *3 (Tex. App.—Amarillo June 10, 2014, no pet.) (mem. op.) (concluding accompanying claim for attorney's fees under PIA "likewise rendered moot" "when the City produced the requested documents to [plaintiff-requestor], obviating any justiciable controversy regarding her entitlement to the writ of mandamus"); Dallas Morning News, 2011 Tex. App. LEXIS 439, at *10-12 (concluding voluntary release of contested documents by City during pendency of suit did not make plaintiff-requestor "prevailing party" and holding that plaintiff-requestor did not substantially prevail and that ineligible for attorney's fees under section 552.323 of PIA).
Because Gates's claim for attorney's fees based on "her central theory of relief" under the PIA is moot, she cannot meet the requirements for recovery of attorney's fees under the PIA. On this basis, we also conclude that she cannot recover attorney's fees under the UDJA. See Jackson, 351 S.W.3d at 301; MBM Fin. Corp., 292 S.W.3d at 669 (prohibiting party from using UDJA as "vehicle to otherwise obtain impermissible attorney's fees"); Heinrich, 284 S.W.3d at 370-01 (noting that UDJA "does not enlarge a trial court's jurisdiction, and a litigant's request for declaratory relief does not alter a suit's underlying nature").
For these reasons, we overrule Gates's second issue.
CONCLUSION
Having overruled Gates's issues, we affirm the trial court's order granting appellees' amended plea to the jurisdiction.
/s/_________
Melissa Goodwin, Justice Before Justices Puryear, Goodwin, and Field Affirmed Filed: June 23, 2016