Opinion
No. 08-20-00171-CV
03-25-2022
CITY OF GEORGETOWN, Texas, Dale Ross, Mayor of the City of Georgetown; and Davis Morgan, City Manager of the City of Georgetown, Appellants, v. Terrill W. PUTNAM, Appellee.
Michael Eugene Lovins, Dallas, Munera Al-Fuhaid, Robert Henneke, Kerrville, Joseph Barnes Sr., for Appellee. William A. Faulk, Brownsville, Lambeth Townsend, Jose E. De La Fuente, Austin, for Appellants.
Michael Eugene Lovins, Dallas, Munera Al-Fuhaid, Robert Henneke, Kerrville, Joseph Barnes Sr., for Appellee.
William A. Faulk, Brownsville, Lambeth Townsend, Jose E. De La Fuente, Austin, for Appellants.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
JEFF ALLEY, Justice
Appellee Terrell Putnam filed a lawsuit against the City of Georgetown, its mayor, and city manager (collectively, the City), to compel the City to provide a specific document to him pursuant to the Texas Public Information Act (PIA). The City had declined to provide the document after receiving an opinion letter from the Texas Attorney General that it was confidential and exempted under the PIA. During the litigation, however, the City voluntarily released the document to Putnam. The City thereafter filed a plea to the jurisdiction, arguing that the trial court lacked subject matter jurisdiction to hear any of Putnam's claims because the release of the document rendered Putnam's lawsuit moot, and because Putnam never had a valid claim for relief against the City that waived its immunity. Putnam opposed the City's plea to the jurisdiction, arguing that he still had "live" claims for relief, as well as a "live" claim for an award of attorney's fees and costs. The trial court agreed with Putnam. We, however, do not, and for the reasons set forth below, we reverse the order of the trial court.
This case was transferred from our sister court in Austin, and we decide it in accordance with the precedent of that court to the extent required by Tex.R.App.P. 41.3.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Public Information Request
Putnam resides in the City of Georgetown and has concerns about the investments the City has been making in renewable energy resources over the past few years. On November 16, 2016, he made a request to the City under the PIA to release a "payback analysis" relevant to a project in which the City had installed solar panels on a public building. Among other things, the payback analysis listed the rates at which the City could purchase electric power from several solar power providers, and the amount of energy each provider could generate at that rate. The City responded to the request, asserting that the payback analysis was excepted from disclosure under section 552.133(b) of the PIA, which exempts from disclosure a public power utility's information that is "reasonably related to a competitive matter" (hereinafter the competitive-matters-exception). See TEX.GOV'T CODE ANN. § 552.133(b). The City timely sought a decision from the Open Records Division of the Office of the Texas Attorney General (OAG) regarding whether the payback analysis came within that exception. In response, the OAG on December 15, 2016, issued "Open Records Decision OR2016-27724" in which it determined that the payback analysis fell within the exception such that the City "must withhold the submitted information."
Section 552.133 of the PIA provides that: "For purposes of this section, ‘competitive matters’ means a utility-related matter that is related to the public power utility's competitive activity, including commercial information, and would, if disclosed, give advantage to competitors or prospective competitors." Tex.Gov't Code Ann. § 552.133(a-1). The section further provides that information that is "reasonably related" to a competitive matter is also excepted from disclosure. Id. § 552.133(b).
B. Putnam's Lawsuit
On August 14, 2018, (some twenty months following the OAG opinion) Putnam filed a lawsuit naming the City of Georgetown, its mayor, and city manager, which sought a declaration pursuant to both the PIA and the Texas Uniform Declaratory Judgment Act (UDJA) that the payback analysis was public information that was not excepted from disclosure under the PIA. He sought an injunction compelling the City to release the document to him and requested an award of attorney's fees under both the PIA and the UDJA.
1. The City's voluntary release of the document
After filing a response to the lawsuit in September of 2018 the City apparently discovered that the payback analysis had previously been placed on its public website, and it therefore voluntarily released the payback analysis to Putnam on October 2, 2018. In its cover letter releasing the document, the City stated that although it was releasing the document, it was not changing its legal position that the payback analysis was not subject to disclosure. After receiving the document, Putnam amended his petition to eliminate his request for injunctive relief seeking release of the document, but he continued to pursue a claim for declaratory relief under both the PIA and the UDJA, which sought a declaration that the payback analysis was public information not excepted from disclosure. He also re-asserted his claim for attorney's fees.
2. The City's pleas to the jurisdiction and Putnam's motion for summary judgment
After releasing the requested document, the City filed a plea to the jurisdiction, seeking dismissal of Putnam's claims. The City argued that Putnam did not have a valid claim for relief that waived the City's governmental immunity under either the PIA or the UDJA, and that even if he did, all the claims, including his claim for an award of attorney's fees and costs, were rendered moot by the release of the document. Putnam opposed the plea and also filed his own motion for summary judgment, arguing that he was entitled to a judgment as a matter of law on his claims for declaratory relief under both the PIA and UDJA, as well as an award of attorney's fees and costs. Putnam argued that the case presented a "live controversy" because the City was still maintaining its legal position that the payback analysis was excepted from disclosure under the PIA. He further argued that his claims came within the capable-of-repetition-but-evading-review and public-interest exceptions to the mootness doctrine because he planned to make similar PIA requests in the future regarding the City's public utilities investments. And when he did so, he feared that the City would once again invoke the competitive-matters-exception to the PIA.
C. The Trial Court's Ruling
The trial court denied the City's plea to the jurisdiction and granted Putnam's motion for summary judgment. In its order, the trial court declared that the payback analysis was not excepted from disclosure under the competitive-matters-exception to the PIA and that it was therefore public and must be disclosed. In addition, the trial court determined that an award of reasonable and necessary attorney fees and costs was equitable and just and ordered Putnam to submit a motion detailing his reasonable and necessary fees and costs in the matter. In response, Putnam submitted a request, together with his attorneys’ billing records, seeking an award of $46,985 in attorney's fees and costs of $318.19. But before the trial court ruled on that request, the City filed this interlocutory appeal from the denial of its plea to the jurisdiction. See TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(a)(8) (permitting interlocutory appeal).
Accordingly, we have jurisdiction over the denial of the plea to the jurisdiction. Because the City filed its notice of appeal before any final order on the fee issue raised in Putnam's motion for summary judgment, there is no final judgment in this case, and we have no jurisdiction to decide any issue other than the denial of the plea to the jurisdiction.
D. Issues on Appeal
The City contends that the trial court erred by denying its plea to the jurisdiction, raising the following issues: (1) whether Putnam's claims were rendered moot by the City's voluntary release of the payback analysis; (2) whether Putnam had a valid claim for declaratory relief under the PIA that waived the City's immunity; (3) whether Putnam had a valid claim for declaratory relief under the UDJA that waived the City's immunity; and (4) whether Putnam was entitled to an award of attorney's fees under either the PIA or the UDJA.
E. Framework for Review
The City raised each of these arguments below through a plea to the jurisdiction, which challenges a trial court's authority to decide a case. See Texas Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 225-26 (Tex. 2004). In a plea to the jurisdiction, a defendant may challenge either the plaintiff's pleadings or the existence of jurisdictional facts on the ground that they do not support subject-matter jurisdiction. Id.
At the pleading stage, a plaintiff carries the burden of alleging sufficient facts to "demonstrate that the trial court has subject-matter jurisdiction over its claims." See City of El Paso v. Viel , 523 S.W.3d 876, 883 (Tex.App.--El Paso 2017, no pet.) ; see also Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). The question of whether a plaintiff has alleged sufficient facts to meet this burden is a question of law that we review de novo. Miranda , 133 S.W.3d at 226. If the pleadings do not allege facts sufficient to affirmatively demonstrate jurisdiction, but the pleading defects are curable by amendment, the issue is one of pleading sufficiency, and the plaintiff should be afforded an opportunity to amend. Texas A & M Univ. Sys. v. Koseoglu , 233 S.W.3d 835, 839-40 (Tex. 2007). However, if the pleadings affirmatively negate the existence of the trial court's jurisdiction by revealing an incurable defect, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. at 840 ; Tabrizi v. City of Austin , 551 S.W.3d 290, 303 (Tex.App.--El Paso 2018, no pet.).
Moreover, when, as here, the plea to the jurisdiction challenges the existence of jurisdictional facts, we consider evidence that the parties submit when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000) ; City of El Paso v. Abbott , 444 S.W.3d 315, 320 (Tex.App.--Austin 2014, pet. denied). Our review of the trial court's decision mirrors that of our review of summary judgments, which we review de novo, accepting as true all evidence favorable to the non-movant, and indulging every reasonable inference and resolving any doubts in the non-movant's favor. City of El Paso v. Heinrich , 284 S.W.3d 366, 378 (Tex. 2009) ; Miranda , 133 S.W.3d at 228 ; State Dep't of Highways and Public Transp. v. Gonzalez , 82 S.W.3d 322, 327 (Tex. 2002).
II. OVERVIEW OF THE PIA
Using the Federal Freedom of Information Act (FOIA) as a model, the Texas Legislature passed the Texas Public Information Act, or PIA. See City of Garland v. Dallas Morning News , 22 S.W.3d 351, 355 (Tex. 2000). The PIA's purpose is to provide public access "at all times to complete information about the affairs of government and the official acts of public officials and employees." Id. at 355-56, citing TEX.GOV'T CODE ANN. § 552.001 ; see also Dominguez v. Gilbert , 48 S.W.3d 789, 792-93 (Tex.App.--Austin 2001, no pet.) (discussing the policies and purpose behind the PIA).
Section 552.001(a) of the Government Code states:
Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is 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. The people, in delegating authority, 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. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
Tex.Gov't Code Ann. § 552.001.
Upon receiving a request for public information, a governmental body's officer for public records must promptly produce public information for inspection, duplication, or both. TEX.GOV'T CODE ANN. § 552.221. The PIA broadly defines "public information" as any information which, under a law or ordinance or in connection with the transaction of official business, is collected, assembled, or maintained by a governmental body; or for a governmental body when the governmental body owns the information or has a right of access to it. Id. § 552.002. However, the PIA excepts information from public disclosure if it is "considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. And in turn, the PIA sets forth several statutory exceptions to disclosure, including the competitive-matters-exception at issue here. See id. § 552.102-.160.
When a governmental body receives a written request for information, the PIA sets forth deadlines and procedures a governmental body's public information officer must follow in responding to the request. First, the officer must determine whether the requested information is public information, and if so, whether it is excepted from disclosure. If the officer determines that the information is public information not excepted from disclosure, the officer must "provide the requester with access to the information within 10 business days after the date of the request," or provide the requester with a reasonable timeframe in which the information will be available. Id. § 552.221(d).
However, if the public information officer determines that an exception to disclosure applies, and there has been no previous determination regarding whether the information in question is excepted from disclosure, not later than the tenth day after receiving the request the officer is required to request a decision from the Open Records Division of the Office of the Attorney General (OAG) on the exception's applicability. Id. § 552.301; see also Dallas Morning News , 22 S.W.3d at 356. The OAG must then render a written decision on the request determining whether the requested information is in fact excepted from disclosure. TEX.GOV'T CODE ANN. § 552.306 ; Dallas Morning News , 22 S.W.3d at 356. If the OAG rules that the information is not excepted from disclosure, the governmental body must make it available to the requesting party or seek a judicial determination that the information does not have to be disclosed. Dallas Morning News , 22 S.W.3d at 356.
The PIA includes two provisions authorizing suit when a requestor is aggrieved by the governmental unit's response. First, section 552.321 of the PIA allows a requester to seek a writ of mandamus compelling the governmental body to release information that they believe the governmental body is wrongfully withholding. See TEX.GOV'T CODE ANN. § 552.321 ; see also Thomas v. Cornyn , 71 S.W.3d 473, 483 (Tex.App.--Austin 2002, no pet.) ("A requestor may bring a mandamus action regardless of whether an attorney general's opinion has been requested or despite the issuance of an adverse attorney general's opinion that favors the withholding of the information.").
Section 552.321 of the PIA 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 ... or refuses to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure." Tex.Gov't Code Ann. § 552.321(a).
Second, section 552.3215 of the PIA provides that: "An action for a declaratory judgment or injunctive relief may be brought in accordance with this section against a governmental body that violates this chapter." TEX.GOV'T CODE ANN. § 552.3215(b). However, there is a split of authority as to whether the individual requestor is authorized to sue under this provision, or whether the requestor must submit the matter to a local county or district attorney to initiate the action. The Austin Court of Appeals, whose precedence we must follow in this transfer case, has given mixed signals on this issue. Compare Travis v. Texas Dep't of Pub. Safety , No. 03-14-00314-CV, 2016 WL 4429931, *2, n.12 (Tex.App.--Austin Aug. 18, 2016, pet. denied) (mem. op.) (citing section 552.3215(a) and (e) for the proposition that a person who claims to be a victim of a PIA violation may seek declaratory judgment) with Gilbert , 48 S.W.3d at 796 (stating section 552.3215 "does not provide for declaratory actions maintained by requestors"); and Gates v. Texas Dep't of Family and Protective Services , No. 03-15-00631-CV, 2016 WL 3521888 at *5, n.4 (Tex.App.--Austin, Dec. 17, 2016, pet. denied) (mem. op.) (declining to decide whether section 552.3215 provides a complainant with a private right of action). In addition, the Texas Supreme Court has indicated in dicta that an action under section 552.3215 must be brought by a local county or district attorney. See Paxton v. City of Dallas , 509 S.W.3d 247, 252 (Tex. 2017) ("The PIA further authorizes certain local or state officials to seek declaratory or injunctive relief based on a complaint by ‘a person who claims to be the victim of a [PIA] violation,’ but only after the governmental body is afforded notice and fails to timely cure the alleged violation.").
As Putnam points out, several courts have held, either implicitly or explicitly, that a complainant has the option of bringing a private claim for declaratory relief under section 552.3215. See Kessling v. Friendswood Indep. Sch. Dist. , 302 S.W.3d 373, 382-83 (Tex.App.--Houston [14th Dist.] 2009, pet. denied) (stating that section 552.3215 gives complainants the option of either to file their own lawsuit at their own expense, or alternatively, to seek the assistance of their local county or district attorney to pursue the matter); S.C.S. v. Texas Dep't of Family and Protective Services , No. 2-09-341-CV, 2010 WL 2889664, at *1, n.3 (Tex.App.--Fort Worth July 22, 2010, no pet.) (mem. op.) (holding that an individual seeking the release of documents under the PIA may file either a suit for a writ of mandamus or an action for a declaratory judgment against a governmental body for violating the PIA under either section 552.321 or 552.3215 ). However, at least one court has held otherwise. See, e.g., Rines v. City of Carrollton , No. 05-15-01321-CV, 2018 WL 833367, at *10 (Tex.App.--Dallas Feb. 13, 2018, pet. denied) (mem. op.) ("On this record, we disagree with appellant's position that section 552.3215 provided a basis for jurisdiction respecting his claims for permanent injunctive relief.").
The court had earlier expressly declined to resolve the issue. Jackson v. State Office of Administrative Hearings , 351 S.W.3d 290, 301 n.9 (Tex. 2011) (declining to reach agency's argument that section 552.3215 of the PIA only allows a local county or district attorney to file the action).
The statutory underpinnings of a PIA claim are important because the target of a PIA claim is a governmental entity which ordinarily enjoys sovereign or governmental immunity. Texas Parks & Wildlife Dep't v. Sawyer Tr. , 354 S.W.3d 384, 388 (Tex. 2011). The legislature may waive immunity by statute, but it must do so by clear and unambiguous language. TEX.GOV'T CODE ANN. § 311.034 ; Hillman v. Nueces County , 579 S.W.3d 354, 360 (Tex. 2019). Only to the extent that a requester has a valid claim for relief under the PIA, will the governmental body's immunity from suit be waived. See, e.g., Abbott , 444 S.W.3d at 322 ; Grant v. Texas State Attorney Gen. , No. 14-18-00677-CV, 2019 WL 6876556, at *4 (Tex.App.--Houston [14th Dist.] Dec. 17, 2019, no pet.) (mem. op.).
And also relevant to this appeal, the UDJA provides that: "A person ... whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the ... statute [or] ordinance, ... and obtain a declaration of rights, status, or other legal relations thereunder." TEX.CIV.PRAC. & REM.CODE ANN. § 37.004(a). In the past, this provision was used as a basis to waive governmental immunity for a plaintiff who filed suit against a state or political subdivision seeking to have their rights determined under a statute, or when requesting an interpretation of a statute that affected them. See, e.g., City of Seagoville v. Lytle , 227 S.W.3d 401, 410 (Tex.App.--Dallas 2007, no pet.) ("A declaratory judgment action against the government seeking a declaration of a party's rights and status under a statute is not barred by governmental immunity."); see also Texas Lottery Comm'n v. First State Bank of DeQueen , 325 S.W.3d 628, 634-35 (Tex. 2010).
However, in 2011, the Texas Supreme Court clarified the law in this area. Relying on the general rule that the UDJA "does not enlarge the trial court's jurisdiction but is merely a procedural device for deciding cases already within a court's jurisdiction," the court held that the UDJA only provides a limited waiver of immunity for a claim that challenges the validity or constitutionality of a statute or an ordinance, and does not allow a party to bring a claim against the State or its political subdivision seeking to have its rights construed under a particular statute or ordinance. Texas Dep't of Transp. v. Sefzik , 355 S.W.3d 618, 621-22 (Tex. 2011) (internal quotation marks omitted); see also City of Austin v. Doe , No. 03-20-00136-CV, 2020 WL 7703126, at *4 (Tex.App.--Austin Dec. 29, 2020, no pet.) (mem. op.) (recognizing change in the law occasioned by Sefzik and holding that because the plaintiff did not challenge the validity of any statute or ordinance that would have waived the City's immunity, the trial court did not have subject-matter jurisdiction over her UDJA claims).
III. MOOTNESS
In its first issue, the City contends that the dispute is moot because it already produced the single document that Putnam sought, such that trial court lacked jurisdiction to resolve Putnam's claims for relief. We start there.
A. Governing Law
Mootness deprives a court of subject-matter jurisdiction. Univ. of Texas Med. Branch at Galveston v. Estate of Blackmon , 195 S.W.3d 98, 100-01 (Tex. 2006) ; Nat'l Collegiate Athletic Ass'n v. Jones , 1 S.W.3d 83, 86 (Tex. 1999) ; Dominguez v. Dominguez , 583 S.W.3d 365, 370 (Tex.App.--El Paso 2019, pet. denied) ("The mootness doctrine implicates a court's subject matter jurisdiction, and such jurisdiction is essential to a court's power to decide a case."); see also Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc. , 971 S.W.2d 439, 442 (Tex. 1998) (justiciability doctrines such as ripeness, as well as standing and mootness, lie in the prohibition on advisory opinions, which in turn stem from the separation of powers doctrine set forth in article 2, section 1 of the Texas Constitution ).
"A case becomes moot when (1) a justiciable controversy no longer exists between the parties, (2) the parties no longer have a legally cognizable interest in the case's outcome, (3) the court can no longer grant the requested relief or otherwise affect the parties’ rights or interests, or (4) any decision would constitute an impermissible advisory opinion." Electric Reliability Council of Texas, Inc. v. Panda Power Generation Infrastructure Fund, LLC , 619 S.W.3d 628, 634-35 (Tex. 2021). If a controversy ceases to exist at any stage of the proceedings, the issues presented are no longer "live" and the case becomes moot, thereby depriving a court of subject matter jurisdiction. Williams v. Lara , 52 S.W.3d 171, 184 (Tex. 2001) ("Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.") (citation omitted); City of Shoreacres v. Texas Comm'n of Env't Quality , 166 S.W.3d 825, 838-39 (Tex.App.--Austin 2005, no pet.) (holding that party's request for declaratory judgment did not change the fact that no justiciable controversy existed because the court could grant no relief having a practical legal effect on the controversy).
B. Putnam's Claims are Moot The City argues that even if Putnam had valid claims under either the PIA or the UDJA, his claims were rendered moot by the City's voluntary release of the payback analysis, thereby depriving the trial court of subject matter jurisdiction. We agree.
1. The Release of the payback analysis mooted Putnam's claims
Courts have uniformly held that a plaintiff's claims for both injunctive and declaratory relief under the PIA are rendered moot upon the governmental body's release of the requested information to the plaintiff. See, e.g., Univ. of Texas Rio Grande Valley v. Hernandez , No. 13-19-00180-CV, 2021 WL 375429, at *3-4 (Tex.App.--Corpus Christi Feb. 4, 2021, no pet.) (mem. op.) (injunctive relief); Nehls v. Hartman Newspapers, LP , 522 S.W.3d 23, 28-29 (Tex.App.--Houston [1st Dist.] 2017, pet. denied) (injunctive and declaratory relief); Gates , 2016 WL 3521888, at *4-6 (injunctive and declaratory relief); Texas State Bd. of Veterinary Med. Examiners v. Giggleman , 408 S.W.3d 696, 704-06 (Tex.App.--Austin 2013, no pet.) (injunctive relief); Dallas Morning News, Inc. v. City of Arlington , No. 03-10-00192-CV, 2011 WL 182886, at *4 (Tex.App.--Austin Jan. 21, 2011, no pet.) (mem.op.) (injunctive relief); Kessling v. Friendswood Indep. Sch. Dist. , 302 S.W.3d 373, 384 (Tex.App.--Houston [14th Dist.] 2009, pet. denied) (declaratory relief).
The requestor's mandamus claim under section 552.321 is moot because the document being sought has been produced. The requestor's declaratory relief claim under section 552.3215 of the PIA for alleged violations of the Act fail as a "declaration that past violations have occurred would have no impact on the rights of the parties." Kessling , 302 S.W.3d at 384-85. Therefore, any opinion construing the provisions and exceptions to the PIA would constitute an impermissible advisory opinion. See, e.g., Houston Chronicle Publ'g Co. v. Thomas , 196 S.W.3d 396, 400-01 (Tex.App.--Houston [1st Dist.] 2006, no pet.) (where the governmental body released requested information to the plaintiff, any pronouncement on the construction of the PIA and its exceptions with regard to the released document would be an impermissible advisory opinion on a hypothetical fact situation, which a court does not have jurisdiction to issue.).
Instructive is the Austin Court of Appeals decision in Gates v. Texas Dep't of Family and Protective Services , where a parent in a CPS case sought to compel the disclosure of documents from CPS's investigation concerning her family. 2016 WL 3521888, at *1. In that case, the OAG had issued an opinion letter that CPS was required to disclose the documents because the request for the OAG opinion letter was not timely. Id. CPS declined to disclose the documents, however, reasoning that an earlier opinion letter based on a request by the other parent for the same documents supported its non-disclosure stance. Id.
The aggrieved parent filed suit under both the PIA and UDJA challenging CPS's non-disclosure. As here, the parent also sought attorney's fees. Over a year after suit was filed, CPS disclosed the documents. And as here, the parent amended her petition relying on section 552.3215(b) of the PIA and section 37.003 of the UDJA for a declaration that the documents were wrongfully withheld. Id. at *2. She also continued to seek the recovery of her costs and attorney's fees. Similar to the record here, CPS sought to dismiss the suit through a plea to the jurisdiction.
The Austin court noted that section 552.321 of the PIA waives sovereign immunity and allows suit for a writ of mandamus against a governmental body but only for disclosure of information. Id. at *4. The PIA does not, however, provide for a waiver of governmental immunity for a claim based on a delay in providing documents. And to the point here, relying on its own earlier opinions in City of El Paso v. Abbott and Texas State Board of Veterinary Medical Examiners v. Giggleman , the Austin court also concluded that once CPS provided the documents, both the PIA and UDJA claims were moot. Id. at *5-7. The court concluded the dispute was moot under section 552.3215, even assuming that provision provided the requestor a direct action. Id. at *5, n.4.
Abbott , 444 S.W.3d at 326.
Giggleman , 408 S.W.3d at 704, 709.
Finally, given the Gates court holding, the mootness doctrine applies equally to any claims Putnam might have under the UDJA. See id. at *6 ; Thomas , 196 S.W.3d at 399 (plaintiff's claim for declaratory relief under the UDJA was moot where the county sheriff released requested document to the plaintiff during course of litigation).
2. Putnam's claims do not fall within an exception to the mootness doctrine
Putnam argues, however, that his claims fall under two exceptions to the mootness doctrine: the capable-of-repetition-yet-evading-review exception and the public-interest exception. We disagree.
The capable-of-repetition-yet-evading-review exception, which only applies in rare circumstances, requires a plaintiff to prove that: "(1) the challenged action was too short in duration to be litigated fully before the action ceased or expired; and (2) a reasonable expectation exists that the same complaining party will be subjected to the same action again." Lara , 52 S.W.3d at 184, citing Murphy v. Hunt , 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) ; see also Texas A & M Univ.-Kingsville v. Yarbrough , 347 S.W.3d 289, 290 (Tex. 2011). The public-interest exception, which is related in nature but broader in its scope, allows consideration of an otherwise moot issue if the issue (1) is "of considerable public importance," (2) "is capable of repetition between either the same parties or other members of the public," and (3) "for some reason evades appellate review." See Univ. Interscholastic League v. Buchanan , 848 S.W.2d 298, 304 (Tex.App.--Austin 1993, no writ) ; see also Ngo v. Ngo , 133 S.W.3d 688, 692 (Tex.App.--Corpus Christi 2003, no pet.) (recognizing that the public-interest exception allows appellate review of "an issue of considerable public importance if that issue is capable of repetition between either the same parties or other members of the public, but for some reason evades appellate review."). Although there is a split of authority regarding whether the public-interest exception is a valid legal theory in Texas, the Austin Court of Appeals has applied this exception, and because we are constrained to follow that court's precedent, we will consider whether Putnam's claims fall under this exception as well. Buchanan , 848 S.W.2d at 304 (applying public-interest exception). Common to both exceptions is the requirement that the dispute will evade review if ordinary mootness principles apply. On our record, that claim is untenable. The City stipulated in the trial court that it would release the payback analysis to any other individual requesting it in the future, as the document is now in the public domain, and must be released to anyone requesting it in accordance with section 552.007(a), (b) of the PIA. See TEX.GOV'T CODE ANN. § 552.007(a), (b) (unless information is confidential under law, a governmental body may voluntarily make information available to the public, and if so, it must make the information available to "any person."). Accordingly, neither Putnam nor any other requester will be subject to the same conduct by the City for this particular document.
This split of authority was recognized by the Houston Court of Appeals, which further noted that the Texas Supreme Court has not yet resolved the split. See, e.g., Thomas , 196 S.W.3d at 399-400 (recognizing split of authority among the courts of appeal regarding the viability of the public interest exception to the mootness doctrine, and noting that the Texas Supreme Court has not yet spoken on whether to adopt the exception), citing, inter alia, Federal Deposit Ins. Corp. v. Nueces Cnty. , 886 S.W.2d 766, 767 (Tex. 1994) (commenting on the public interest exception to the mootness doctrine, but declining to decide whether to adopt it); see also In re Smith Cnty. , 521 S.W.3d 447, 454 (Tex.App.--Tyler 2017, no pet.) (recognizing that the Texas Supreme Court has not yet decided the viability of the public interest exception to the mootness doctrine).
Putnam, however, argues that we should not just consider how the City will respond to requests for this specific document, but we should also consider how the City will respond when a requester seeks the release of other similar documents in the future. And Putnam contends that he intends to "remain vigilant in monitoring the activities of his government" and therefore intends to continue making requests for the release of similar documents in the future, as may others. In turn, Putnam argues that the City has already evidenced an intent to continue to invoke the competitive-matters-exception to the PIA when faced with such requests. The City's correspondence releasing the payback analysis to Putnam states that the City stands by its position that the payback analysis was subject to the competitive-matters-exception. Accordingly, Putnam argues that the City will likely subject him and other requesters in the future to the same "obstructionist" conduct in the future.
Even if we were to accept this broader definition of when an issue is capable of review, we would not accept Putnam's argument that the issue truly evades review. Putnam finds it significant that no court has yet construed the scope and applicability of the competitive-matters-exception, and therefore concludes that this must mean it evades review. Of course, when a court has previously decided a particular issue, the issue has not evaded review. See generally Ngo , 133 S.W.3d at 692 (noting that when a court has previously decided an issue it does not evade judicial review). However, the opposite is not necessarily true. In determining whether an issue evades review, the focus is not on whether a court has reviewed the exact issue in the past, but whether, by its very nature, the issue is not "effectively reviewable" in any future case. See Gates , 2016 WL 3521888, at *6 (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 also City of Dallas v. Woodfield , 305 S.W.3d 412, 419 (Tex.App.--Dallas 2010, no pet.) ("When determining the ‘evading review’ element, the proper inquiry is whether the challenged activity is by its very nature short in duration so that it could not, or probably would not, be able to be adjudicated while fully live."). Thus, to establish that a claim evades review, "the plaintiff must show that the time between the challenged action and its expiration is always so short as to evade review." Id. (emphasis added). Here, Putnam has a clear statutory right to obtain judicial review if a payback analysis is ever withheld in the future. See TEX.GOV'T CODE ANN. § 552.321. The statute expressly permits for review, and the legion of reported cases demonstrate that parties can avail themselves of that right. See, e.g., Gates , 2016 WL 3521888, at *6 (noting that the Texas Supreme Court has reviewed questions regarding whether information must be released under the PIA in several cases), citing Texas Dep't of Pub. Safety v. Cox Texas 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 the PIA); Jackson , 351 S.W.3d at 291 (reaching merits of whether information must be disclosed under PIA); City of Garland , 22 S.W.3d at 368 (reaching merits of whether information was excepted from disclosure under PIA). When a statute sets forth a mechanism for judicial review of a party's claim, the claims are effectively reviewable. See generally Cornyn v. City of Garland , 994 S.W.2d 258, 266 (Tex.App.--Austin 1999, no pet.) (finding the capable-of-repetition-yet-evading-review exception to the mootness doctrine inapplicable, where the Texas Open Meetings Act expressly provided an interested person with an "adequate" right of judicial review in the form of an application for writ of mandamus or injunction); see also Cook v. Hedtke , No. 03-17-00663-CV, 2018 WL 1660078, at *3 (Tex.App.--Austin Apr. 6, 2018, no pet.) (mem. op.) (same).
We also note the following cases in which courts have construed exceptions to the PIA when presented with a live controversy over the public nature of a requested document. See, e.g., King v. Paxton , 576 S.W.3d 881, 903 (Tex.App.--Austin 2019, pet. denied) (construing various exceptions to the PIA on requester's appeal from the district court's order granting summary judgment requiring release of information); Austin Bulldog v. Leffingwell , 490 S.W.3d 240, 250 (Tex.App.--Austin 2016, no pet.) (construing exception to PIA of certain personal e-mail addresses); Abbott v. Dallas Area Rapid Transit , 410 S.W.3d 876, 884 (Tex.App.--Austin 2013, no pet.) (construing exceptions to PIA involving information contained in a government personnel file); Paxton v. Escamilla , 590 S.W.3d 617, 621-24 (Tex.App.--Austin 2019, pet. denied) (interpreting and applying the "law enforcement" exception to the PIA); Texas Dep't of Crim. Just. v. Levin , 572 S.W.3d 671, 675 (Tex. 2019) (interpreting and applying PIA provision that excepts from disclosure information that poses a "substantial threat of physical harm.").
As important, the nature of the competitive-matters-exception undermines Putnam's claim that the City could simply withhold a similar document in the future and then voluntarily release the document to thwart a subsequent lawsuit. The OAG determined that the payback analysis fell within the competitive-matters-exception. Presumably, if a similar issue arose as to a similar document in the future, the OAG would reach the same ruling. The PIA provides criminal penalties if an entity's public information officer distributes or misuses information considered confidential under the PIA. See TEX.GOV'T CODE ANN. §§ 552.351 -.353. In other words, the City's information officer on a whim could not just release a confidential document. See Paxton , 509 S.W.3d at 254 n.38 (stating in dicta that the OAG has recognized the competitive matters exception to disclosure as being a mandatory exception to the PIA, and that a governmental body may be subjected to possible criminal sanctions for publicly releasing such information). While the document here was inadvertently disclosed, the public information officer would have little incentive to make the same mistake twice. And the fact that the City has stated that it would, if appropriate, invoke the competitive-matter-exception in the future only underscores the likelihood that this issue will be resolved on the merits if it arises again.
The City also notes that in the last ten years, the OAG has issued 418 opinion letters interpreting the section 552.133 competitive-matters exception.
Putnam, however, likens his case to the situation faced by our sister court in Click v. Tyra , 867 S.W.2d 406, 407 (Tex.App.--Houston [14th Dist.] 1993, orig. proceeding) (op. on reh'g). In Click , a party to a lawsuit filed a mandamus proceeding, alleging that a district clerk attempted to unlawfully charge him for a transcript that was included in his filing fee. However, during the pendency of the mandamus proceeding, the district clerk filed the transcript and argued that the mandamus proceeding was thereby rendered moot. Id. at 408. The court of appeals declined to treat the issue as moot after receiving several Amicus Curiae briefs advising the court that the issue presented a recurring problem, as the district clerk had repeatedly engaged in such conduct in the past, and the briefs filed by the district clerk claimed she was acting with her legal authority and that she would not willingly change her course of conduct in the future. Id. at 408-09. The court concluded that under these circumstances, the district clerk was "able to short-circuit" judicial review of her practice of requiring payment for transcripts by "simply filing the transcript after a petition for a writ of mandamus is filed," which "creates a situation where the complained of act is of such short duration that it evades review whenever [her] actions are challenged." Id. at 409.
But unlike the plaintiffs in Click , Putnam has not presented any evidence that the City engaged in any wrongful practice that violated the PIA in handling his request, or that it deliberately thwarted judicial review of his PIA claims. Instead, the record shows that the City acted in accordance with the requirements of the PIA in responding to Putnam's request, by first seeking an OAG opinion regarding whether the payback analysis was excepted from disclosure, and by later releasing the document to him when it realized that it was already in the public domain. Further, unlike the plaintiffs in Click , Putnam has not presented any evidence that the City has engaged in an ongoing pattern of conduct that violated the rights of other members of the public in either seeking public information or in obtaining judicial review of their claims under the PIA. Although Putnam cited to various newspaper articles in his trial court pleadings that allegedly contained negative reports on how the City had responded to PIA requests in the past, there is nothing in the record to suggest that the City acted wrongfully in handling any of those past requests, or that the City sought to thwart any individual's right to judicial review of PIA claims in any of those instances. Absent such evidence, Putnam is unable to demonstrate that he or other members of the public will likely be subjected to any wrongful conduct in the future when seeking information regarding the City's utility operations, or that the City will attempt to thwart their right to seek judicial review of any future PIA claim that might bring.
The City also provided a document indicating that from 2009-2019, the City requested 16 decisions from the OAG in which it sought to withhold information from a requester, and that the OAG upheld the City's determination that the information it sought to withhold came within an exception to disclosure in all but three of those requests. There was only one instance in which the City sought to withhold information under the competitive-matters-exception during that time frame.
Accordingly, we conclude that the issues raised in Putnam's PIA claim does not evade review, and therefore does not come within any exception to the mootness doctrine. See, e.g., Nehls , 522 S.W.3d at 33 (plaintiff's claim did not evade review where there was no evidence to support the plaintiff's "bare contention" that the county sheriff had a policy or practice of withholding discoverable public information such that it was a recurring problem), citing Thomas , 196 S.W.3d at 403 (holding that there was no evidence that the defendant had a "de facto policy of stonewalling the press" or that the act was of a "recurrent character" that would bring it within the public interest exception to the mootness doctrine).
We therefore conclude that on mootness grounds, the trial court lacked subject matter jurisdiction to hear any of Putnam's PIA claims for declaratory relief. The City's Issue One is sustained.
IV. PUTNAM'S CLAIM FOR ATTORNEY'S FEES
In addition to his other arguments, Putnam also contends that his claim for attorney's fees "breathes life" back into the case to overcome any mootness problem. See Camarena v. Texas Employment Commission , 754 S.W.2d 149, 151 (Tex. 1988) (holding farm workers’ claim for attorney's fees under the Texas Unemployment Compensation Act "breathes life into the appeal"); see also Allstate Ins. Co. v. Hallman , 159 S.W.3d 640, 642 (Tex. 2005) (similarly holding attorney's fee dispute overcame mootness claim in insurance policy dispute).
Accordingly, we address the City's Issue Four and those parts of its second and third issues as necessary to resolve any pending claim for attorney's fees and costs. Specifically, in Issue Four, the City contends that the trial court erred in ruling that Putnam was entitled to an award of attorney's fees and costs under either the PIA or the UDJA. We agree.
A. No Fees or Costs Under the PIA
The PIA expressly provides that a trial court may award attorney's fees and costs to a party that "substantially prevails" in an action brought under sections 552.321 or 552.3215 of the PIA. TEX.GOV'T CODE ANN. § 552.323(a) ("In an action brought under Section 552.321 or 552.3215, the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails, except that the court may not assess those costs and fees against a governmental body if the court finds that the governmental body acted in reasonable reliance on ... a written decision of the attorney general ..."). Putnam contends that he "substantially prevailed" on his PIA claims and is therefore entitled to an award of attorney's fees and costs under section 552.323.
But as the City points out, several courts have held that when a governmental body voluntarily releases information to a plaintiff in PIA proceeding before a final judgment or other order directing the information's release, the plaintiff cannot be considered to have substantially prevailed in the litigation for purposes of obtaining attorney's fees under the PIA. In reaching this conclusion, the Austin Court of Appeals held, along with several other courts of appeal, that the PIA's "substantially prevailed" requirement incorporates the concept of a "prevailing party" in determining whether a party is entitled to attorney's fees. See, e.g., Gates , 2016 WL 3521888, at *7, citing Giggleman , 408 S.W.3d at 703 ; see also City of Arlington , 2011 WL 182886, at *4 (equating the PIA's substantially prevailing standard to the "prevailing party" standard.). In turn, to qualify as a "prevailing party," a plaintiff must obtain (1) judicially sanctioned relief on the merits of its claim that (2) materially alters the legal relationship between the parties such as a damages award, injunctive or declaratory relief, or a consent decree or settlement in the party's favor. Intercont'l Grp. P'ship v. KB Home Lone Star L.P. , 295 S.W.3d 650, 653-55 (Tex. 2009) (construing provision in contract calling for an award of attorney's fees to a "prevailing party" in the event of litigation). Therefore, when a governmental body voluntarily releases a requested document to a plaintiff in a PIA case before entry of an enforceable order or judgment directing it to do so, the plaintiff cannot be considered a prevailing party or to have substantially prevailed in the litigation. See, e.g., Gates , 2016 WL 3521888, at *7-8 ; Nehls , 522 S.W.3d at 32-33 ; Giggleman , 408 S.W.3d at 706 ; Hudson v. Paxton , No. 03-13-00368-CV, 2015 WL 739605, at *3-4 (Tex.App.--Austin Feb. 20, 2015, pet. denied) (mem. op.) ; City of Arlington , 2011 WL 182886, at *2-4 ; 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.) ; City of Dallas v. Dallas Morning News, L.P. , 281 S.W.3d 708, 718 (Tex.App.--Dallas 2009, no pet.) ; but see City of Houston v. Kallinen , 516 S.W.3d 617, 623-24 (Tex.App.--Houston [1st Dist.] 2017, no pet.) (explaining that disclosure of information after an order compelling disclosure did not render a claim for attorney's fees moot).
Putnam argues, however, that we should no longer follow the "prevailing party" standard in determining whether a party has substantially prevailed on a PIA claim, as that standard has been called into question by recent changes to the FOIA, upon which the PIA was modeled. In particular, Putnam points out that Texas courts originally adopted the prevailing party standard based on the U.S. Supreme Court's decision in Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res. , 532 U.S. 598, 605-06, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). In that case, the Court interpreted a similar FOIA provision to mean that the plaintiff must have obtained an enforceable judgment against a governmental body ordering the release of the information he requested. Id. Putnam points out, however, that Congress amended the FOIA in 2007 to redefine the term, "substantially prevail[ing]" to include "obtain[ing] relief through ... a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial." See Hudson , 2015 WL 739605 at *2, n.3 (recognizing change in the attorney fee standard in FOIA), citing 5 U.S.C. § 552(a)(4)(E)(ii). And because the PIA was modeled on the FOIA, he contends that we should also adopt this same standard in determining when a party has substantially prevailed in a PIA case. We disagree.
Despite the U.S. Congress amending the attorney fee provision in the FOIA in 2007, the Texas Legislature has not taken any action to amend the Texas PIA to include any similar language, despite making three other unrelated amendments to the PIA during this time. Hudson , 2015 WL 739605 at *4-5. As the Austin Court of Appeals has recognized, even though the Texas PIA was modeled on the FOIA, the Texas PIA functions independently of the FOIA, and Texas courts are therefore not bound to follow changes in FOIA when no such changes are made to the Texas PIA. Id. at *4. And despite the changes in FOIA, Texas courts have consistently applied the traditional Texas "prevailing party" standard for determining when a party has substantially prevailed on a PIA claim. Id. (noting that the controlling authority for construing the term "substantially prevail" continues to be the Texas Supreme Court's holding in KB Home Lone Star , as recognized by various other opinions including Dallas Morning News and Giggleman ); see also Gates , 2016 WL 3521888, at *7, n.6 (while recognizing change in FOIA, courts continue to apply the prevailing party standard for awarding attorney's fees in PIA cases).
See Tex.Gov't Code Ann. § 552.323, amended by Act of May 25, 1999, 76th Leg., R.S., ch. 1319, § 29, 1999 Tex.Gen.Laws 4500, 4512; Act of May 31, 2009, 81st Leg., R.S., ch. 1377, § 9, 2009 Tex.Gen.Laws 4326,4238; and Act of May 21, 2019, 86th Leg., R.S., ch. 616 (S.B. 988), § 1, 2019 Tex.Gen.Laws 1825, 1825.
Accordingly, we apply the current "prevailing party" standard in determining whether Putnam substantially prevailed on his PIA claims, and we determine that he did not, as the City released the payback analysis to him prior to the trial court's order granting Putnam's motion for summary judgment and did not do so in response to any enforceable order. Putnam was therefore not entitled to an award of attorney's fees and costs under the PIA.
B. No Fees or Costs Under the UDJA
And finally, Putnam argues that even if he was not entitled to an award of attorney fees and costs under the PIA, he was nevertheless entitled to such an award under the more liberal standard set forth in the UDJA, which allows a party to recover his fees and costs even if he did not substantially prevail in the litigation, if the court finds that such an award is "equitable and just." TEX.CIV.PRAC. & REM.CODE ANN. § 37.009 (authorizing an "award of costs and reasonable and necessary attorney's fees as are equitable and just" in "any proceeding under this chapter."); see also City of Temple v. Taylor , 268 S.W.3d 852, 858 (Tex.App.--Austin 2008, pet. denied) ("In a declaratory-judgment action, a party need not prevail on its claim in order to be entitled to an attorney's-fee award."); see also Sierra Crest Homeowners Ass'n, Inc. v. Villalobos , 527 S.W.3d 235, 249 (Tex.App.--El Paso 2016, no pet.) (an award of attorney's fees is not dependent on a finding that the party "substantially prevailed.").
But Putnam never had a valid UDJA claim that waived the City's immunity in the first instance, and therefore, the trial court never properly assumed subject matter jurisdiction of his UDJA claim. Putnam's claim for declaratory relief under the UDJA does not challenge the validity or the constitutionality of any provision of the PIA, and instead only seeks a determination of his rights under the PIA, i.e., a ruling that the payback analysis he requested was a public information not excepted from disclosure under the PIA. Following the Texas Supreme Court's decision in Sefzik , that claim is simply not viable. Sefzik , 355 S.W.3d at 622 ("[T]he state may be a proper party to a declaratory judgment action that challenges the validity of a statute. Sefzik is not challenging the validity of a statute; instead, he is challenging TxDOT's actions under it, and he does not direct us to any provision of the UDJA that expressly waives immunity for his claim.") (internal citations omitted).
And no claim is made here that any official acted ultra vires, nor is there any request to allow for a remand to amend the petition to assert an ultra vires claim.
In a substantially similar situation, the Houston Court of Appeals, sitting en banc concluded that a PIA requester's claim under the UDJA did not waive the State's immunity where the PIA requester, like Putnam, only sought a declaration that the information he requested was not excepted from disclosure under the PIA. See Fallon v. Univ. of Texas MD Anderson Cancer Ctr. , 586 S.W.3d 37, 55-57 (Tex.App.--Houston [1st Dist.] 2019, no pet.), citing and quoting Sefzik , 355 S.W.3d at 621 ("[T]he [ ]DJA does not waive the [S]tate's sovereign immunity when [a] plaintiff seeks a declaration of his ... rights under a statute or other law."). In other words, the court recognized that the requester was only seeking a declaration of his rights under the PIA which was not within the UDJA's waiver of immunity. Id. ; see also Texas Dep't of Ins. v. Green , No. 01-15-00321-CV, 2016 WL 2745063, at *3 (Tex.App.--Houston [1st Dist.] May 10, 2016, pet. denied) (mem. op. on reh'g) (recognizing that claims that simply seek an interpretation of a statute do not fall within the waiver of immunity set forth in the UDJA, where the claim does not otherwise challenge the validity of a statute); City of McKinney v. Hank's Rest. Group, L.P. , 412 S.W.3d 102, 112 (Tex.App.--Dallas 2013, no pet.) (the UDJA does not waive immunity for claims seeking a declaration of the claimant's statutory rights or an interpretation of an ordinance).
Putnam contends that "subsequent" events have called the opinion in Fallon into question, but he does not identify what those subsequent events might be.
Putnam, however, finds it significant that section 552.3215 of the PIA contains a catch-all provision, which provides that "[a]n action authorized by this section is in addition to any other civil, administrative, or criminal action provided by this chapter or another law." TEX.GOV'T CODE ANN. § 552.3215(k). And he points out that in the past, various courts--including the Texas Supreme Court in City of Garland --have indicated that a plaintiff may challenge a governmental body's failure to release information by seeking declaratory relief under the UDJA, in addition to other remedies under the PIA. See, e.g., City of Garland , 22 S.W.3d at 357 (recognizing that "[p]ersons seeking information under the Act have sued for declaratory judgment rather than mandamus ... in addition to mandamus.").
The flaw in Putnam's argument centers on the fact that the court's opinion in City of Garland --as well as the other cases cited therein--all predate the court's holding in Sefzik . And, as the court in Fallon pointed out, after the decision in Sefzik was announced, various courts, including the Austin Court of Appeals, have concluded that the UDJA does not waive immunity when a plaintiff only seeks a "declaration of rights under the PIA," and does not otherwise challenge the validity or constitutionality of the PIA itself. Fallon , 586 S.W.3d at 57, citing McLane Co. v. Texas Alcoholic Beverage Comm'n , 514 S.W.3d 871, 874-76 (Tex.App.--Austin 2017, pet. denied) (affirming trial court's dismissal of plaintiff's UDJA claim seeking a declaration of plaintiff's rights under the PIA, where plaintiff did not challenge the validity of a statute or ordinance); Giggleman , 408 S.W.3d at 707 (plaintiff did not have a valid UDJA claim that waived the State's immunity under Sefzik , where he did not seek a declaration regarding a statute's validity, and instead only sought a declaration of his rights under the PIA).
Putnam's claim for declaratory relief under the UDJA also fails because it was merely redundant or incidental to his PIA claim. As the Texas Supreme Court has explained, the UDJA does not enlarge a court's jurisdiction, and therefore, it would be inappropriate to allow a party whose primary claim arises under the PIA to use the UDJA as a vehicle to obtain attorney's fees that are not otherwise allowable under the PIA. See Jackson , 351 S.W.3d at 300-01 (holding that recovery of attorney's fees under UDJA was unavailable because party's claim for attorney's fees was "incidental to his central theory of relief which arises squarely under the TPIA"), citing John G. & Marie Stella Kenedy Mem'l Found. v. Dewhurst , 90 S.W.3d 268, 289 (Tex. 2002) ; see also Giggleman , 408 S.W.3d 696, 707 (plaintiff who sought release of a document under both the PIA and the UDJA was not entitled to an award of attorney's fees under the UDJA where his UDJA claim was "merely redundant of or incidental to his PIA mandamus claim"); Gates , 2016 WL 3521888, at *7 (same). As the court in Jackson explained, if repleading a claim as a UDJA action could justify an award of attorney's fees, such fees "would be available for all parties in all cases." Jackson , 351 S.W.3d at 301, quoting MBM Financial Corp. v. Woodlands Operating Co. , 292 S.W.3d 660, 670 (Tex. 2009).
Because Putnam's UDJA claim was, at best, a request for the court to determine his rights under the PIA, the City's immunity was not waived under the UDJA, and the trial court therefore erred by not dismissing Putnam's UDJA claim for lack of subject-matter jurisdiction. In turn, lacking jurisdiction to hear the merits of Putnam's UDJA claim, the court would also lack subject matter jurisdiction to award attorney's fees to him under the UDJA. See Hegar v. Autohaus LP, LLP , 514 S.W.3d 897, 907-08 (Tex.App.--Austin 2017, pet. denied) (where plaintiff's claim did not invoke the UDJA's limited waiver of immunity, trial court lacked jurisdiction to hear the merits of the plaintiff's UDJA claim, as well as its claim for attorney's fees arising under the UDJA).
Accordingly, we conclude that Putnam was not entitled to an award of attorney's fees and costs under either the PIA or the UDJA. The City's Issue Four is sustained.
V. CONCLUSION
For the reasons set forth above, we hold that the trial court erred in denying the City's Plea to the Jurisdiction. We sustain the City's first and fourth issues. We need not reach the merits of the second and third issues, other than to the extent they are addressed in section IV of this opinion. The trial court's order is reversed.
Rodriguez, C.J., concurring
CONCURRENCE
YVONNE T. RODRIGUEZ, Chief Justice
I agree with the disposition of the case based upon the precedent we are obliged to follow. Specifically, the City's release of the requested information, however inadvertent or begrudging the disclosure, moots the claims made by Putnam under the PIA and the UDJA, to which no exception of the mootness doctrine applies. See, e.g., Gates v. Texas Dep't of Fam. and Protective Svcs. , No. 03-15-00631-CV, 2016 WL 3521888, at *5-7 (Tex.App.—Austin Jun. 23, 2016, pet. denied). Additionally, we are bound to accept the state of the law regarding Putnam's inability to recover attorney's fees since voluntary production of a document sought under the PIA does not impute to Putnam the status of having "substantially prevailed" in the litigation. See, e.g., id. at *7 (citing Texas State Bd. of Veterinary Medical Examiners v. Giggleman , 408 S.W.3d 696, 703 (Tex.App.—Austin 2013, no pet.) ); see also Dallas Morning News, Inc. v. City of Arlington , No. 03-10-00192-CV, 2011 WL 182886, at *4 (Tex.App.—Austin Jan. 21, 2011, no pet.)(mem. op.) (stating the PIA's substantially-prevailing standard is akin to the "prevailing party" standard).
However, although I do not find it necessarily warrants a different outcome in the case, I believe it is worth mentioning a pertinent fact distinguishing this case from others within the growing number of cases considering disclosure under the PIA. Here, the City only "voluntarily" produced the payback analysis after realizing the same information had been published on its website since before Putnam made his open-records request or filed suit [CR34-36, 66]. Indeed, the information is still available on the City's website, see City Council Regular Meeting September 13, 2016 , CITY OF GEORGETOWN , TEXAS https://georgetowntx.novusagenda.com/AgendaPublic/CoverSheet.aspx?ItemID=14986&MeetingID=1822 (last visited November 19, 2021), and nothing in the record indicates an attempt by the City to remove that information from the public sphere. Thus, regardless of any exemption the City claims precludes the document's publication, the City improperly withheld the information because it already waived any claim of confidentiality. See Paxton v. City of Dallas , 509 S.W.3d 247, 263 (Tex. 2017) (acknowledging that claims for confidentiality under the PIA may be waived by the government, even for inadvertent disclosures, "when inadvertence is coupled with failure to take prompt remedial action after discovering actual disclosure of privileged information[.]"); see also Jordan v. Court of Appeals for Fourth Supreme Judicial Dist. , 701 S.W.2d 644, 649 (Tex. 1985) ("It is the rule in Texas that the protections afforded by a privilege are waived by voluntarily disclosure of the protected documents."). It appears the City was so focused on avoiding disclosure of the class of documents within which they claim the payback analysis fell that they failed to ascertain from the start whether the precise information Putnam sought was information protected from disclosure under the PIA. Although the City maintains the payback analysis falls under the competitive-matters exception—an exception which carries the possibility of criminal sanctions upon the government for wrongful disclosure—the City has still taken no action to remove the information from the public domain. Instead, the City chose to send a copy of the analysis to Putnam to moot the litigation, all while maintaining the document was covered by the competitive matters exception which, if applicable, prohibits production of the information by the City.
I acknowledge the mandatory exception to disclosure under the PIA for information covered by the competitive-matters exception. However, the AG's opinion indicates the office sided with the City based on the City's own "representations" about the document falling under that exception, and nothing from the AG's opinion indicates an independent analysis was undertaken about whether the substance of the document contained information protected pursuant to the competitive matters exception.
Respectfully, I find the City's position untenable. Nevertheless, the document's production, under the law, moots Putnam's lawsuit. On this point, I feel I have no choice but to agree with the majority insofar as the outcome of this case.
I also want to note concerns I have regarding the effect this precedent has in chilling citizens’ rights under the PIA, as the facts of this case illustrate. First, for the lawsuit to be rendered moot (thus eliminating subject matter jurisdiction) upon release of the information opens the door for governmental entities to insist on withholding information requested under the PIA with little, if any, cognizable risk, so long as the document is produced before judgment is rendered in favor of the requestor. This reality forces concerned citizens to file lawsuits and engage in litigation at their own expense to compel the government to produce documents that, in some cases, the AG determined it is obligated to produce. See Gates , 2016 WL 3521888 at *2. Then, when the governmental entity finally decides it is tired of expending resources fighting disclosure of the information, it can simply turn over the requested information and end the litigation. See id. at *5-7. The result is the citizen having obtained the requested information to which he or she was entitled, but at significant personal financial cost—a cost which otherwise would have been avoided if the governmental unit faced direct consequences for wrongfully withholding the document in the first place. Even more dire, is the possibility that citizens will abstain from pursuing litigation to obtain information they may be rightly entitled to, and which the government is improperly withholding, precisely because of the personal financial cost involved. In the same vein, I do not find it a remote prospect governmental units could rely on this possibility as a basis for withholding documents, gambling on citizens running out of funds to pay their attorneys before information is disclosed.
The requirement that a litigant "substantially prevail" in litigation to be awarded attorney's fees under the PIA exacerbates the above-described problem. See TEX. GOV'T CODE ANN. § 552.323 ("In an action brought under Section 552.321 or 552.3215, the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails[.]"). That requirement does not account for circumstances where the course of litigation reveals the government's legal obligation to disclose information under the PIA which results in the ultimate voluntary disclosure and mooting of the case, notwithstanding the cost to the private litigant in arriving at that juncture. It likewise fails to contemplate a situation where a court rules from the bench in favor of a citizen's request for information, at which time the government hands over the document at the hearing before a written judgment is entered, despite the ruling in the citizen's favor. In that scenario, the citizen would, once again, be stuck with the check for legal fees incurred in the fight to obtain information because the statutory definition of "substantially prevail" was not met. These scenarios compromise the purpose and intent of the PIA, in my opinion, and may have the net effect of punishing those who seek to hold their governing officials accountable.
I recognize the exception to Section 552.323 which precludes a recovery of attorney's fees when the government acts "in reasonable reliance on ... a written decision of the attorney general[.]" See Tex. Gov't Code Ann. § 552.323.
However, given the clear precedent, I have little choice but to concur with the outcome arrived at by the majority.