Opinion
No. 01-02-00359-CR.
Opinion Issued April 24, 2003.
Appeal from the 234th District Court, Harris County, Texas, Trial Court Cause No. 2001-38194.
Panel consists of Justices TAFT, KEYES, and HIGLEY.
MEMORANDUM OPINION
Appellant, Ivo Nabelek, appeals the granting of summary judgment in favor of appellees, C.O. Bradford, Robert Hurst, and the City of Houston (collectively, "the City"), in his suit challenging the constitutionality of section 552.028 of the Texas Government Code. See Tex. Gov't Code Ann. § 552.028 (Vernon Supp. 2003). We determine whether the trial court properly granted summary judgment. We reverse the judgment and remand the cause. Facts and Procedural History Nabelek pleaded guilty to aggravated sexual assault of a child, sexual performance by a child, and possession of child pornography in February of 1993 and is currently serving his sentence. After he was incarcerated, Nabelek requested certain documents relating to his arrest and investigation from the Houston Police Department ("HPD") under the Public Information Act (formerly the Open Records Act). See Tex. Gov't Code Ann. § 552.021 et seq . (Vernon Supp. 2003). Nabelek specifically requested a copy of an HPD "Offense Report" so that he might attack the validity of his convictions, but HPD refused this request. The Public Information Act states: A governmental body is not required to accept or comply with a request for information from:
(1) an individual who is imprisoned or confined in a correctional facility; or
(2) an agent of that individual, other than that individual's attorney when the attorney is requesting information that is subject to disclosure under this chapter.
Id. § 552.028. Nabelek filed a declaratory judgment suit against the City, challenging the constitutionality of this statute under the Due Process and Equal Protection clauses and the First Amendment of the United States Constitution and requesting injunctive relief. See U.S. Const. amends. I, V, XIV. The City moved for summary judgment under Rule of Civil Procedure 166a(c), attaching as evidence Nabelek's petition and responses to the City's request for disclosures. See Tex.R.Civ.P. 166a(c). The trial court granted the City's motion without specifying the grounds. Standard of Review The purpose of rule 166a is "to provide a method of summarily ending a case that involves only a question of law or no genuine issue of [material] fact." Nationwide Prop. Cas. Ins. Co. v. McFarland , 887 S.W.2d 487, 490 (Tex.App.-Dallas 1994, writ denied). "The movant for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law." Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether there is a disputed material fact issue precluding summary judgment, we take the evidence favorable to the nonmovant as true. Nixon , 690 S.W.2d at 548-49 . We indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. Id.
Nabelek's constitutional challenge involved both a facial and an "as-applied" challenge.
The City's Motion
In his sole point of error, Nabelek contends that the trial court erred by granting summary judgment in favor of the City. In its summary judgment motion, the City asserted two grounds. First, the City argued that Nabelek had not joined the proper parties because (1) the Attorney General, who was a necessary party, was not made a party and (2) all three defendants were improper parties because Nabelek's challenge involved a state statute, rather than a municipal ordinance. Second, the City argued that governmental immunity under the Texas Tort Claims Act (TTCA) barred Nabelek's claims. Nabelek responded (1) that, because the Attorney General was served with notice of the suit and allegedly declined to join, appellant did not need to join the Attorney General as a party; (2) that the defendants were proper parties because they was responsible for HPD's policies relating to denial of information requested under section 552.028; and (3) that governmental immunity under the TTCA was inapplicable because plaintiff did not bring any tort claims or request any damages.
See Tex. Civ. Prac. Rem. Code Ann. § 101.021 et seq. (Vernon Supp. 2003).
A. Proper Parties
The City first argued that summary judgment was proper because Nabelek had not joined the proper parties. The City claimed that (1) the Attorney General, who was a necessary party, was not made a party and (2) the defendants should not be parties to Nabelek's suit because Nabelek's challenge involved a state statute, rather than a municipal ordinance.
Because Nabelek requested a declaratory judgment, this case is governed by the Uniform Declaratory Judgments Act (UDJA). See Tex. Civ. Prac. Rem. Code Ann. §§ 37.002, 37.006 (Vernon 1997). The UDJA grants any litigant whose rights are affected by a statute the opportunity to obtain a declaration of those rights under the statute and requires that all relevant parties be joined. See id. When a litigant brings a UDJA action challenging the constitutionality of a state statute and requesting interpretation of the statute, the statute requires that the Attorney General be served with a "copy of the proceedings" and that the Attorney General is entitled to be heard. See Tex. Civ. Prac. Rem. Code Ann. § 37.006; Tex. Educ. Agency v. Leeper , 893 S.W.2d 432, 446 (Tex. 1994). Nevertheless, Texas courts have held that section 37.006 does not require that the Attorney General be made a party defendant. Tex. Civ. Prac. Rem. Code Ann. § 37.006; Wichita County v. Robinson , 276 S.W.2d 509, 511 (Tex. 1954); cf. Motor Vehicle Bd. of the Texas Dept. of Transp. v. El Paso Indep. Auto. Dealers Assoc., Inc. , 1 S.W.3d 108, 110 (Tex. 1999) (holding that, although Attorney General was not required to be party to suit challenging constitutionality of Blue Law and had declined to participate, Attorney General had not waived its right to appeal negotiated pretrial settlement because Attorney General was bound by judgment and its interests were affected by judgment). The City's summary judgment ground based on section 37.006 asserted that the Attorney General had to be made a party defendant. This argument was based on an inaccurate legal premise because the Attorney General does not have to be made a party to a UDJA action. See Robinson , 276 S.W.2d at 511. Therefore, the trial court could not have properly granted summary judgment on the ground that the Attorney General was not joined as a party. The City also argued that summary judgment was correctly granted because all three defendants were improper parties under the UDJA. The City claimed that the City of Houston and its employees should not be parties to Nabelek's suit because Nabelek's challenged involved a state statute, rather than a municipal ordinance. Under the UDJA, "all persons who have or claim any interest that would be affected by the declaration must be made parties." See Tex. Civ. Prac. Rem. Code Ann. § 37.006(a); Leeper , 893 S.W.2d at 446. For example, governmental entities who may be bound by a court's declaration on their ordinances or statutes must be joined as parties. Leeper , 893 S.W.2d at 446. Local officials who are responsible for enforcement of an ordinance or statute are also proper parties. See El Paso , 1 S.W.3d at 110-11 (confirming that, in attack on constitutionality of Blue Sky law, local officials who are responsible for enforcing law, such as county, city, and county attorneys, may be proper parties); Leeper , 893 S.W.2d at 437-38 (deciding constitutionality of compulsory-attendance statute in suit in which Texas Education Agency, Texas Commissioner of Education, and Assistant General Council of TEA were properly named as defendants); City of Longview v. Head , 33 S.W.3d 47, 54 (Tex.App.-Tyler 2000, no pet.) (holding that trial court lacked jurisdiction in challenge of constitutionality of criminal statute when district and county attorneys, responsible for enforcement of the statute, were not joined as parties). Nabelek sued the City of Houston and its employees C.O. Bradford and Robert Hurst in their official capacities after he was denied certain documents from HPD relating to his arrest and investigation. Section 552.028, which Nabelek challenges, gives governmental bodies the discretion whether to comply with an inmate's request for information. See Tex. Gov't Code Ann. § 552.028. The governmental body from which Nabelek requested information was HPD. Thus, athough section 552.028 is a state statute, the City of Houston and its employees were responsible for deciding whether or not to comply with Nabelek's request for records relating to his arrest and investigation. Thus, these defendants were proper parties. See Leeper , 893 S.W.2d at 438 .
Therefore, the trial court could not have properly granted summary judgment on the ground that Nabelek failed to join the proper parties.
B. Governmental Immunity
The City next argued that summary judgment was proper because the City of Houston was immune from liability under the TTCA to the extent that Nabelek brought a negligence claim.
Nabelek did not bring any tort claim or request any monetary damages. Instead, Nabelek filed suit seeking only a declaratory judgment and injunctive relief, a suit governed by the UDJA. See Tex. Civ. Prac. Rem. Code Ann. § 37.002. Therefore, the TTCA and its immunity provisions are inapplicable. See id. §§ 101.021, 101.025 (Vernon 1997). Further, the UDJA waives sovereign immunity with respect to Nabelek's challenge to the constitutionality of section 552.028. Tex. Mun. Power Agency v. Pub. Util. Comm'n , No. 03-02-00462-CV, slip op. at 7 (Tex. App.-Austin Feb. 6, 2003, no pet. h.) (holding that sovereign immunity is expressly waived under UDJA action for interpretation of statute). Therefore, the trial court could not have properly granted summary judgment on the ground that Nabelek's claim was barred by sovereign immunity.
Accordingly, the trial court erred by granting summary judgment as a matter of law.
The City also argues that Nabelek's suit had "no arguable basis in law or fact" under section 14.003(a) of the Texas Civil Practice and Remedies Code, which section governs the dismissal of an inmate's in forma pauperis suit. See Tex. Civ. Prac. Rem. Code Ann. § 14.003(d) (Vernon 2002). Because the City did not raise this argument in its motion for summary judgment, we will not consider the argument on appeal. See Casso v. Brand , 776 S.W.2d 551, 553 (Tex. 1989); Greathouse v. Alvin Indep. Sch. Dist. , 17 S.W.3d 419, 426 (Tex.App.-Houston [1st Dist.] 2000, no pet.).
We sustain Nabelek's sole point of error.
Conclusion
We reverse the trial court's judgment and remand the cause.